Stevens and Stevens

[2015] FamCA 1106

FAMILY COURT OF AUSTRALIA

STEVENS & STEVENS [2015] FamCA 1106

FAMILY LAW – CHILDREN – application to restrain mother from removing the children from Australia – application to have children placed on the airport watch list – cross-application for permission to remove children from the Commonwealth of Australia for the purpose of holiday travel – where the mother was born and raised in Peru – where maternal extended family continues to live in Peru – where the father expresses concerns the mother will not return to Australia - where Peru, the proposed country of travel is a party to the Hague Convention – where the father asserts the children will be at an unacceptable risk of harm in Peru – where the father asserts the Hague Convention is ineffective in achieving the return of children wrongfully retained – where orders made permitting the children to be removed from Australia for the purpose of holiday travel.

Convention on the Civil Aspects of International Child Abduction

Family Law Act 1975 (Cth)

Line & Line (1997) FLC 92-729

APPLICANT: Mr Stevens

RESPONDENT: Ms Stevens

FILE NUMBER: BRC 11273 of 2011

DATE DELIVERED: 11 December 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 7 December 2015

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Mr James, James & Co Lawyers

Orders

IT IS ORDERED BY WAY OF INTERIM ORDER THAT

1. The children R, born … 2007 (a boy), and N, born … 2009 (a boy) are permitted to travel with the mother, Ms Stevens, born … 1972, to Peru on the following conditions:

   (a)the children shall not depart the Commonwealth of Australia any earlier than 6 January 2016; and

   (b)       the children must return to Australia by no later than 27 January 2016.

2. The mother, Ms Stevens, born … 1972, is permitted to remove R, born … 2007 (a boy), and N, born … 2009 (a boy) from the Commonwealth of Australia, for the purposes of travelling to Peru for a holiday, for a period of not more than three (3) weeks between 6 January 2016 and 27 January 2016.

3. No later than seven (7) days before the day of departure, the mother shall provide to the father, via email:

   (a)a copy of the travel itinerary (including the address/es where the children will be staying in Peru and contact telephone number/s for them whilst there); and

   (b)a copy of an airline or travel agent issued schedule of booked, prepaid and receipted return air tickets for herself and the children showing booked and prepaid return air tickets on a date to ensure the children are back in Australia by no later than 27 January 2016. 

4. To enable the Australian Federal Police to be sure that all conditions under this Order have been fulfilled, the solicitors for the mother (James & Co Lawyers) shall, on behalf of the mother, provide the Australian Federal Police with:

   (a)      a copy of this Order; and

   (b)a statement that they have been instructed that Clause 3 of this Order has been fulfilled by the mother; and

   (c) a letter indicating the precise time that the mother intends that the children depart from Australia and return to Australia.

5. During the time the children are in Peru, the mother shall ensure that they communicate with the father by telephone or Skype on not less than two (2) occasions per week.

6. To the extent that Clauses (6)(j)(ii) and (11) of the Order made on 28 March 2014 are inconsistent with Clause (5) of this Order, the operation of Clauses(6)(j)(ii) and (11) of the Order made on 28 March 2014 are stayed whilst the children are out of the Commonwealth of Australia.

7. The mother is hereby restrained from travelling to a country other than a country which is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.

8. Save as is provided for above, the Court requests that the Australian Federal Police otherwise retain the name of R, born … 2007 (a boy), and N, born … (a boy) on the Airport Watch List at all points of international arrivals and departures in Australia until further order of the Court.

9. The mother has liberty to obtain a passport for the children and any visa they may require to the extent necessary, the father is to sign and return any document required for this purpose within forty-eight (48) hours of receiving a request to do so.

10. In the event that the father fails to comply with a request to sign and return any document necessary to obtain a passport for each of the children, a Registrar of the Family Court of Australia is appointed, pursuant to s 106A of the Family Law Act 1975 (Cth), to sign such document or documents in the name of the father and to do all acts and things necessary to enable a passport to be obtained for each of the children.

AND IT IS FURTHER ORDERED

1. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stevens & Stevens has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11273 of 2011

Mr Stevens

Applicant

And

Ms Stevens/Chavez

Respondent

REASONS FOR JUDGMENT

1. On 18 September 2015, the father filed an Initiating Application by which he seeks interim orders that, until further order, each parent is restrained from removing or attempting to remove their children R, (born in 2007) and N (born in 2009)[1] from the Commonwealth of Australia. He also seeks that the children’s names are  placed on the Airport Watch List maintained by the Australian Federal Police.

   [1]           Both of whom are Australian citizens.

2. In responding to the father’s application, the mother – who was born in Peru and lived permanently in Lima until 1996 - seeks to be able to remove the children from Australia for the purpose of travelling to Peru between 6 January 2016 and 27 January 2016; that she is authorised to apply for and receive an Australian passport for the children without the need for the consent of the father; that, before departing from Australia, she provide the father with a copy of the children’s travel itinerary (showing the dates of departure from Australia and return to Australia and flight details), details about where the children will be staying during their time in Peru and a contact telephone number for the children; and that she ensure the children communicate with their father by telephone or Skype on not less than two occasions per week while they are in Peru.

3. The parties’ competing interim proposals fall to be considered in circumstances where the final parenting orders made on 28 March 2014 (after a trial which concluded on 7 March 2014) restrained the parents from removing the children from Australia before 31 December 2015 and, to facilitate this, provided that the Australian Federal Police place their names on the Watch List until 31 December 2015. Clause 28 of the March 2014 Order specifically provided that, after 31 December 2015 and subject to any further order of the Court, the Australian Federal Police remove the children’s names from the Watch List.

4. It is apparent from the March 2014 Reasons for Judgment[2] that the parties’ respective positions about the children leaving Australia for the purpose of holiday travel are the same now as they were then. Additionally, their respective rationales remain significantly the same also:

   a)the father continues to fear that the mother may not return the children to Australia; and

   b)the mother continues to want to be able to take the children to visit her parents (the children’s maternal grandparents, who are 83 and 76 years of age respectively) and other family members (including her sister and two brothers) who all live in Lima, Peru.

   [2]           Paragraphs [224] to [233].

5. The father’s evidence is that he opposes the mother’s proposal to remove the children from Australia and take them to Peru for a holiday during the January 2016 school holiday period because he asserts that:

   a)they will be at an unacceptable risk of harm if they travel to Peru; and

   b)there is a serious risk the mother will choose not to return the children to Australia.

6. As his affidavit makes clear, the second of these contentions is, to him, the most serious of his two reasons for seeking the orders he does.

   Will the children be at an unacceptable risk of harm if they travel with their mother to Peru?

7. In summary, the father contends that the Court would conclude that the children will be placed at an unacceptable risk of harm if permitted to travel to Peru with their mother because:

   a)in May 2015, the Australian Federal Government issued travel advice to Australians advising them to exercise a high degree of caution in Peru because of the “significant levels of serious crime”; and

   b)the Australian Government’s Smart Traveller website advises that citizens not travel to the border between Peru and Columbia.

8. In responding to these assertions, the mother accepts that certain parts of Peru are “best avoided”. However, these areas – which she particularises in her affidavit – are no less than about 1,000 kilometres from Lima, where her parents live. I accept that she has no intention of taking the children to such areas and intends to confine her trip to Lima. She also advances that she would never place the children at risk of harm and, therefore, would at all times act to ensure that they are safe whilst in her care overseas.

9. There is nothing in the evidence to suggest that the mother is anything but a caring and careful parent. There is nothing to suggest that she would wilfully or recklessly place the children in any situation – whether in Australia or overseas in Peru - in which they may be at risk of suffering significant harm.

10. Whilst all travel – whether within Australia or overseas - is potentially attended by risks of different kinds, I am not persuaded that the children will be at an unacceptable risk of harm if they are permitted to travel with their mother to her country of birth in order to visit their maternal grandparents and members of their extended maternal family during their January 2016 school holidays.

    The risk the mother will not return the children to Australia

11. The Convention on the Civil Aspects of International Child Abduction (the Hague Convention) provides a mechanism for the prompt return of wrongfully removed or retained children between contracting states. Both Australia and Peru are contracting states to the Hague Convention.[3]

    [3]Family Law (Child Abduction Convention) Regulations 1986 (Cth), Schedule 2, Regulation 10.

12. The father asserts that there is a serious risk that the mother will not return the children to Australia if she is permitted to remove them from this country because she had previously wanted to sever the children’s relationship with him, previously threatened to remove the children from Australia (never to return), originally sought orders that the children have no contact with him and that she have sole parental responsibility for them, may owe ‘considerable’ amounts of money to ‘various’ law firms (which may be an incentive not to return to Australia), denied him Skype communication with the children between 22 July 2015 and 1 September 2015 – although, ‘in most cases’, he was able to speak with the children by telephone – in what he perceives as retaliation for his refusal to sign the children’s passport applications and is yet to provide him with a copy of return airline tickets.

13. He also asserts that, if the maternal grandparents believe he had sexually abused the children – that allegation having been canvassed in the March 2014 Reasons for Judgment – they may do everything they can to protect the children by ensuring they not return to Australia and, even though Peru is a party to the Hague Convention, this would not assist if the mother acted to hide the children and squirrel them away, or paid officials in Peru (who he described as corrupt) to prevent action being taken to have the children returned to Australia.

14. In meeting the father’s assertions, the mother swears that, whilst she still has some reservations about the father’s parenting style, the current parenting orders seem to be working ‘okay’: the boys seem to be coping and adjusting as well as can be expected given the reality of their separated parents and they generally enjoy spending time with their father. She says she will continue to support and encourage the children in this interaction and that she has no intention whatsoever of permanently leaving Australia or the P Region. She says she and the children are happy and content in Town B and the children enjoy their school and have a good circle of friends, as does she. She says she and the children are involved in their community through church, gym attendance, attendance at the community centre and via participation in sports.

15. The mother clearly says she has no desire at all to live with the children anywhere else but Town B, or perhaps C District, in Queensland, Australia. She says she has no intention whatsoever of not returning to Australia. She also says that she and, more importantly, the children have a good life where they are currently living and, because it is very important to her that the children have a good and strong relationship with their father, she would never act to remove them permanently from him. She also says that, because she would never want to deny the children a relationship with their father, she promises to return to Australia with the children if they are permitted to leave this country for a holiday.

16. The mother has lived in Australia since 2004. She was granted citizenship of this country in 2009. Whilst she has no family here, she says she has a close circle of very good friends. There is no evidence to the contrary. The children have never lived anywhere but Australia.

17. The mother and children have lived in Town B for the last four years – both children attend a local school and are described by the mother as settled and going well. The mother is employed on a part-time basis as a teacher’s aide at another local school in the area and has been in this role since September 2014. She rents the house in which they live and is taking steps to obtain finance to enable her to buy her own home: to that end, she says she has enquired of the Commonwealth Bank of Australia about a home loan - those inquiries resulted in her learning that she has an adverse credit rating arising from a supposed debt (which she thought had been settled) owing to former solicitors. These solicitors have agreed to consent to having the Judgment entered against her struck out and, once that occurs, the bank has indicated that her application for finance will be viewed favourably.

18. As a result of the distance between Peru and Australia and the fact of their grandparents’ ages, the children have each only seen them once. They have, however, spoken to them regularly by telephone; they have also spoken with a cousin who they have never met in person. Such conversations are possible because the children both speak Spanish.

19. In summary, the mother simply wishes to be able to take the children for a holiday to see their grandparents so that they can continue their emotional attachment to them and so that they can experience their Peruvian heritage first hand.

    Further discussion and conclusions

20. Everything the father submitted supports his sworn evidence that he does not consent to the children traveling outside of Australia at any time in the near and foreseeable future because he strongly believes the mother is an extremely high risk of never returning the children to this country.

21. Whilst the father appeared to seek that I draw an adverse inference from the fact that the mother is yet to provide him with a copy of return airline tickets for the children, as I commented during the hearing, I am not at all surprised that a parent (such as the mother) would not go to the expense of acquiring tickets for overseas travel in circumstances where it was clear the other parent (the father) opposed the children travelling outside Australia and the matter was likely to come before a Court for determination.

22. I am not persuaded by the father’s assertions that the Hague Convention is ineffective in ensuring the return of children if retained overseas by a parent. Similarly, there is no evidence at all to support his contention that the maternal grandparents may act to prevent the children from returning to Australia at the end of their holiday visit.

23. Whilst I accept that the father has no trust in the mother, the absence of this is not something that should properly impact upon the children’s opportunity to experience all of the benefits of overseas travel with their mother to her country of birth where they will be able to interact personally with their elderly grandparents.

24. I accept that the mother has continuing ties to Australia.[4] Whilst she does not own real property here, she has lived here since 2004, obtained citizenship in 2009 and has been employed here since September 2014. She says – and I accept, given that the father did not suggest otherwise – that she has a close circle of friends in her local community. I also accept that she and the children, who both attend a local school, are connected in and with their local community.

    [4]See the discussion by the Full Court in Line & Line (1997) FLC 92-729 of matters to be considered in assessing the risk that children might not be returned to Australia.

25. The father’s submissions and evidence may be considered as suggesting that protecting the children from him or severing their relationship with him, and that the fact her family live in Lima, and that she may have outstanding debts here all constitute possible motives for the mother to decide not to return the children to Australia. However, I accept her explanations and evidence that she wants to support their children in their relationship with their father and that she would not do anything to prevent them from having the opportunity to maintain a relationship with him.

26. Whilst the mother’s parents and siblings live in Peru, there is no evidence that she owns real property there nor has any business interests in Peru.

27. I do not place any weight on the unsubstantiated assertions of the father that the mother could in some unparticularised way influence or manipulate the authorities or system in Peru to, or for, her benefit and the children’s detriment: if he expected the Court to accept such assertions, he bears the responsibility and onus of putting cogent evidence to that effect before the Court.

28. I am not satisfied on the balance of probabilities that there is any basis to find that the risk that the mother will deliberately not return the children to Australia if permitted to remove them from this country for a holiday to Peru is a significant one.

29. I accept that the mother’s purpose in seeking to take the children to Peru for a holiday is to enable them to spend time with their maternal grandparents and members of their extended maternal family and to experience an aspect of their heritage and culture. The children together have never visited Peru – the land in which their mother was born and their maternal relatives live. If they are able to travel there for a holiday, they will have the opportunity to meet their extended maternal family and will have the opportunity for connection with, and exposure to, their Peruvian cultural heritage.

1. I consider that the short period of time during which the mother proposes the children holiday in Peru will not adversely affect the benefit to them of a meaningful relationship with their father now or in the future. As I have already outlined, I am not persuaded that the children will be at an unacceptable risk of harm if they travel to Peru with their mother for a holiday to enable them to meet and spend time with family members.

2. I am satisfied that the children’s relationship with their father will not be adversely affected by their absence from Australia during this relatively short period of time, that there is no unacceptable risk of harm to them of undertaking such travel, and that there is no unacceptable risk that the mother will not return them to Australia at the conclusion of the proposed trip.

3. I consider the children are more likely than not to benefit from the opportunity to spend time in Peru and meet and spend time with members of their Peruvian extended family, including their maternal grandparents. Given that the time during which they will be absent from Australia will only occur in the school holiday period, their schooling and education here will not suffer in any way.

4. I consider that the mother has significant links, in respect to established lifestyle and career, in Australia. Additionally, as noted, Peru is a Hague Convention country. 

5. The mother’s modest financial circumstances prevent her offering funds or property as security for the return of the children to Australia. As noted earlier, she currently lives in rental premises and her income from her part-time employment is likely to be relatively modest.

6. I accept that she is unable to meet the costs of travel to Peru and provide any funds which could be retained pending the children’s return here. I also accept as more probable than not that any possibility she may have been able to offer to deposit funds with a third party to be held on trust pending that outcome has been further eroded by the fact of these proceedings and the costs associated with them.

7. For the reasons outlined above, I am persuaded that the children’s best interests will be met by allowing them to travel to Peru for a holiday with their mother for no more than three weeks during the January 2016 school holiday period.

   Dates between which the children are permitted to be out of Australia for holiday travel

8. The mother is unable to nominate the exact dates upon which the children will leave Australia and return to this country; however, she is able to nominate a date before which they will not leave and that they will be back in Australia before the start of the 2016 school year. After all, she too will have to return to work then.

9. So that there can be no doubt about the date by which the children must be returned to Australia - their place of habitual residence immediately before they depart for Peru for the purpose of holiday travel only – the order will specify the period of time during which they may be absent from this country and the date by which they must be returned to it, their home.

   Other orders to facilitate the children’s travel to Peru

10. Given the strength with which the father has expressed his opposition to the children leaving Australia at all, I consider it appropriate to make orders which will dispense with the necessity for his consent to the issue of passports for the children or – if necessary - visas for the children, or his signature on any document required to obtain the same. In this way, I will eliminate any prospect that the children’s highly likely excitement and anticipation about their holiday to Peru may be extinguished and/or their trip thwarted in some way.

11. Given that the father seeks, by way of final order, that the children’s names remain on the Watch List maintained by the Australian Federal Police, it is appropriate that, once they return to Australia in January 2016, after their holiday in Peru, their names again be placed on that list until further order of the Court.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 11 December 2015.

Associate:     

Date:              11 December 2015