Sukova & Allen

[2011] FamCA 340

FAMILY COURT OF AUSTRALIA

SUKOVA & ALLEN [2011] FamCA 340

FAMILY LAW – CHILDREN – whether the child can travel overseas with the mother.

Family Law Act 1975 (Cth)

Gin and Hing [2010] FamCA 617
Line and Line (1997) FLC 92-729

APPLICANT: Ms Sukova

RESPONDENT: Mr Allen

FILE NUMBER: MLC 7292 of 2008

DATE DELIVERED: 13 May 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 13 May 2011

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Hanlon

SOLICITOR FOR THE RESPONDENT: Pearce Webster Douglas

Orders

1. That to the extent that the following orders are inconsistent with paragraph 16 and 17 of the orders made 6 November 2009, that is, the order restraining the wife Ms Sukova from removing the child B (female) born … November 2006 from the Commonwealth of Australia the said paragraph 16 is suspended during the operation of these orders.

2. That the wife Ms Sukova is permitted to remove the child from the Commonwealth of Australia for the purposes of travelling to Country C for a period between 4 June 2011 and 3 July 2011 only on the following terms and conditions.

3. The wife’s departure from Australia with the child is subject to the following:

   (a)No later than 7 days before the day of departure, the wife provide to the husband through his lawyers, copies of the travel itinerary including the addresses where she will be staying in Country C together with copies of  return airline tickets; and

   (b)No later than 7 days before the day of proposed departure from Australia, the wife obtain a receipt for the security funds referred below from the solicitors for the husband for the purposes of production to the Australian Federal Police.

4. To enable the Australian Federal Police to be sure that all conditions under these orders have been fulfilled, the wife provide to them the following:

   (a)      a copy of these orders; and

   (b)a copy of a letter from Pearce Webster Dugdales confirming that they are holding $15,000 in their trust account or controlled account for the purposes of the security otherwise referred to in these orders.

5. To enable the Australian Federal Police to be sure that all conditions under these orders have been fulfilled, the wife provide to them a copy of these orders.

6. That the Court requests that the Australian Federal Police otherwise retain the name of the child B (female) born … November 2006 on the Airport Watch List at all points of international arrivals and departures in Australia.

7. That no later than seven (7) days before the day of departure, the wife pay into the trust account or controlled account of the solicitors for the husband Pearce Webster Dugdales of …, the sum of $15,000 to be held in trust by them for the wife as security for her return of the child to Australia.

8. That the husband have liberty to apply on short notice to make an urgent application for the release of the said trust funds if the wife has not returned the child to Australia within 24 hours of the date referred to in paragraph (2) hereof.

9. That upon the wife returning to Australia with the child, she shall immediately advise the husband of her return.

10. That the application of the wife filed 19 April 2011 and the response thereto filed by the husband on 2 May 2011 are otherwise dismissed.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

2. Pursuant to s.65DA(2)and s.62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7292  of 2008

Ms Sukova

Applicant

And

Mr Allen

Respondent

REASONS FOR JUDGMENT

1. An application by Ms Sukova (“the wife”) was filed on 19 April 2011 seeking orders that she be able to take the child B born … November 2006 and travel outside of Australia to Country C for two months in June and July 2011.  She also sought orders that:

   (a)injunctions made on 6 November 2009 preventing international travel be discharged; and

   (b)the father sign documents “to enable passport” (sic) to be issued.

2. Mr Allen (“the husband”) opposed all orders seeking that the wife’s application be dismissed.  He filed a response at the court on 2 May 2011. 

3. This is the second application made by the wife, the first having been refused after a contested hearing on 6 November 2009.

4. Because the wife sought orders relating to a specific event, the Duty Registrar abridged time and listed the hearing in the Judicial Duty List.  The event to which the wife referred was a christening in Country C in June but she also referred to the child being given the opportunity to meet her cousins who would have designated holidays from June to September.

5. The wife was unrepresented as she had been in 2009 and the husband was represented by Mr Hannon of counsel.  The wife was more keen to proceed than was the husband but the husband’s counsel sought that she be cross-examined.  Although that was somewhat unusual for a Duty List matter, I could see no other way of the matter being properly heard.  I therefore gave the husband an opportunity because of the otherwise unlikely prospect of a contested hearing later this year.

6. By way of simple background, the wife was born in Country C where her extended family still live in the city of City D.  The family have visited Australia on a number of occasions.  She deposed to the fact that there was a good relationship between the child and her maternal grandmother and there is regular electronic communication. 

7. The husband works in administration areas and the child is his only child.

8. The parties married in 2005 and divorced in 2009.

9. It is important to understand that these proceedings were similar although not identical to, part of the proceedings in 2009.

10. In 2009, the relationship between the husband and then 3 year old B, was a fledgling one.  The parties were unable to agree about parenting orders and a determination was made which provided a progressive holiday regime between the husband and the child.  The wife had been in Country C for some months and the husband was very keen to establish a relationship with the child.  The orders provided for him to spend alternate weekends with the child from Friday until Monday leading into Thursday through to Monday in 2012.

11. It was part of the wife’s 2009 case that she be able to go to Country C for three months with the child.  She said then that she had every reason to live permanently in Australia but wanted a holiday in September 2010 when airline tickets would be cheaper and she could look for a “part time job in [Country C”.  Despite that statement, she said the trip was to be a holiday.  The duration was explained because:

    (a)The child was going to start school in 2012; and

    (b)It was not worthwhile going to Europe only for two weeks.

12. The application was refused in 2009 but there were injunctive orders also made about leaving Australia with the child.  A notation to the order in November 2009 reads:

    It is the wife’s desire to travel in the future to [Country C] with [the child] and in the event that the husband and wife cannot agree upon the terms of that travel, the wife has been given leave by the Court to make an urgent application…

13. Thus, the application was filed on 19 April 2011.

14. Before dealing with the travel issue, I propose to mention the other orders sought by the wife.  The injunction precluding international travel is dependent upon the outcome of the travel issue.  There is no trust nor serious parenting communication between the parties.  As such, the injunction should remain in place for the same reasons as given in 2009.  The second issue concerning the passport was perplexing.  The wife conceded that the child already has a passport.  She sought an order that the husband sign any document relating to passports for the future.  She explained that, as she did in 2009, she wanted to overcome the necessity of having to return to court if a need arose particularly at short notice.  For the same reasons as outlined about trust and communication, I find that that order is not appropriate.

15. There are distinct similarities between the evidence given in this application and that in 2009.  Be that as it may, I propose to determine the matter on the basis of the evidence before me. 

16. In the limited time of the hearing and absent the wife being represented by a lawyer, it is difficult to make any general findings as to credibility and I propose not to.  Each party seemed to be candid and truthful.  Accordingly, I propose to determine the matter according to the standard of proof which is the balance of probabilities.

17. In this application, the wife said that she had no family living in Australia.  Her brother lives in City D where he has two children aged 8 years and 3 years.  The brother has sent an invitation to the wife to attend a christening of the 3 year old which is to be held in Country C on 26 June 2011. 

18. The wife’s philosophical view was that the child should have an opportunity to spend time with her family given that a similar opportunity has been provided to the husband’s family.  The child speaks the Country C language as it is her mother’s natural language at home. 

19. There is currently regular communication between the child and her extended family in Country C through the internet.

20. The wife said:

    It is especially important for me that the child learn acceptance and love from her family, before embarking on her primary school years where she may faces (sic) challenges with social environments.

    That statement cannot be elevated above the relationship with her father.

21. In respect of the child’s future, the wife said that she had settled into Australian life and culture and she was working part-time.  She said that she had permission to work her field in 2012 and was intending to undertake tertiary study.  That evidence was not challenged and was clearly put forward to indicate a degree of stability about the future particularly in relation to her desire to live with the child in Australia.  I have no reason to doubt that it is the wife’s intention notwithstanding considerable disquiet that the Court had in 2009 because of the statements of the wife that were made in those proceedings.

22. The wife went on to say that the opportunities for the child were far better in Australia than they would be in Country C.  The husband did not dispute that. 

23. There was considerable controversy about how much communication had occurred in relation to the wife telling the husband about her plans to travel.  The wife acknowledged that the husband’s position was that there should be no travel until the child turned 10 years of age.  There is no basis for me to find that 10 years of age is the appropriate age in this case.

24. I am satisfied however that the wife provided minimal information about the trip much the same as she provided minimal information about the child to the husband normally.  In that context however she said that if she was allowed to travel with the child overseas, contact could take place via telephone and over the internet and that she thought that the child would be able to continue the relationship with her father without the distance having any “significant impact”.  She then said:

    When the child returns from overseas, I suggest that repair time be allocated with her father as per her father’s request and agreement.

    That statement indicates a clear acknowledgement of the husband’s concern that the relationship will be set back. 

25. In this case, both parties acknowledge that Country C is a signatory country to The Hague Convention on the Civil Aspects of International Child Abduction although the husband’s view was that enforcement may be difficult because of the paucity of resources in Country C.

26. Accordingly it might be generally observed that little has changed since 2009.  It was then the wife’s desire to travel to her family of origin in Country C and no doubt to expose the child to that culture and that is still the position now.

27. The husband’s opposition to the wife’s application was clear from his evidence.  He was largely unchallenged and I accept what he said as genuine.  His evidence was that when the wife raised the travel issue, she did not state how long she was proposing to be away nor the proposed dates.  He expressed all of the concerns that one might expect about the fact that the wife had no family in Australia but rather in Country C.  He said she retained her citizenship in Country C. 

28. The husband referred back to the 2009 proceedings indicating that the wife’s father had expressed unhappiness about the wife remaining in Australia after the breakdown of the marriage.  He would have me infer that the grandfather would prefer to have the wife living in Country C.  In many ways, that is a natural inference to draw but it does not necessarily follow that I would accept that that is the wife’s intention. 

29. All of these problems highlight the lack of trust particularly about whether the child will return to Australia and equally importantly, whether the relationship between the husband and the child will be fostered by the wife.  The husband said that he accepted and supported the child’s right to enjoy both cultures as well as her Country C extended family but pointed to the fact that the wife’s philosophical statement which I have set out above had no special significance.  I do not accept that it is not important but rather that it is less important than the maintenance of a meaningful relationship between father and child. 

30. The husband pointed to a number of matters to suggest that the wife could not be trusted.  He said she refused to provide him with her residential address and she was secretive of her location.  He knew nothing about her accommodation in Melbourne and the only means of contacting her was through mobile telephone or email.  He pointed to the fact that there was no existing intervention order so there was no basis for him not to know the whereabouts of the child.  The parties had not been able to agree on schooling.

31. The husband also complained that the wife was living in what he described as temporary accommodation which resulted in the child attending temporary kindergartens.  The wife endeavoured to explain that by her financial position.  From the property settlement, she received minimal money after the payment of her legal costs.  I am satisfied that she is living on a very limited budget.

32. The wife was cross-examined about the refusal to provide her residential address and she was dismissive of the husband’s concerns.  She was evasive as to the reasons behind her secretiveness.  She was also not convincing about having communicated the details of the overseas trip to the husband.  When challenged about the timing of that, she was again dismissive and seemed to indicate that the husband should simply fall into line with her views.

33. All of these matters do not engender confidence in me accepting that the wife will foster and strengthen the child’s relationship with the husband and as such, it is important for the Court to be vigilant and make appropriate orders.  In that regard, the husband referred to the fact that the relationship had been slow in developing with the child and he did not believe she was settled.  He attributed that to changes of address by the wife.  He pointed to behavioural issues and what could only be described as separation anxiety.  He pointed to difficulties of separating at kindergarten.  Whilst these may be natural in a child of the child’s age, the wife did not dispute any of that evidence nor did she offer any explanation as to how she was dealing with those matters.  In circumstances where the relationship between the parties is at best poor, it is hard to see those difficulties being overcome in the foreseeable future.

34. I have already mentioned that the husband acknowledged the existence of The Hague Convention but he endeavoured to say that Country C was a poor country with few resources for police to track down children.  The wife acknowledged that the nation was poor.  The husband’s counsel pointed to the absence of any offer of security and when I raised it with the wife, she just seemed to suggest that it was not possible but later indicated she would do what she could.

35. In relation to the proposed trip, the husband indicated his opposition because of the adverse effect on his relationship with the child.  However, he also pointed to the fact that even the Australian Government was concerned about the destination.  It is quite clear that the Department of Foreign Affairs and Trade has declared the north-west region of Country C one in which travellers need to have a high degree of caution.  The wife endeavoured to avoid that issue saying that City D is a long way from the border but geographically, that is not so.  Whilst I accept and it was not otherwise put to the wife, that she would not take great care of the child, it is still an issue that obliges the Court to be cautious.

36. In respect of the wife’s impecuniousity and the security issue, the husband pointed to evidence of the wife’s family having funds.  The wife denied that was the case but I note that they have travelled to Australia over the last few years.  To some degree, the security issue is ameliorated by the connection between Country C and The Hague Convention.

37. In every case, the decision of a parenting nature has to be made with the best interests of the child in mind.

38. Part VII of the Act provides that each of the parents of a child who has not attained the age of 18 years has parental responsibility for that child. Parental responsibility about decisions for the future of a child means all the duties, powers and authority which by law parents have in relation to a child. It therefore includes questions such as international travel because s 61C(3) provides that parental responsibility is subject to any order of the Court.

39. Section 64B(2) provides that a parenting order may deal with any aspect of parental responsibility for a child not otherwise covered by the section. The objects and principles from which the provisions of Part VII are to be applied are set out in s 60B, which relevantly provides that the best interests of children are met by ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.

40. Fundamental to my decision in this case is s 60CA which says:

    In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. 

41. In determining what is in a child’s best interests, s 60CC provides that the Court must consider a number of matters in determining what is in the child’s best interests.  I did that exercise in 2009 and nothing has since changed about parenting capacity and responsibility.

42. This case is partly about risk but more about the protection of the child’s relationship with the husband in circumstances where what is really being contemplated is a holiday.  In relation to the risk, I find that it is modest.

43. In Line and Line (1997) FLC 92-729 the factors relevant for consideration in an international travel case were said to be:

    (a)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);

    (b)The existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues); and

    (c)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); and

    (d)Whether the country of travel is a signatory to the Hague convention.

1. As I said in Gin and Hing [2010] FamCA 617:

   Decisions about international travel are difficult to make because no-one can foretell the future and the decision I have to make here amounts to a leap of faith. The Court determines discretionary matters within the framework of the evidence that it is presented.

2. I am satisfied that the wife has ties in Australia albeit not financial ones and has no sinister motive for wanting to return to Country C.  I accept she does not want to live there permanently.  I accept that Country C is a signatory to the Convention.

3. In my view, the risk here is modest.  However, the security issue should not be simply disregarded.  Security is designed to give some comfort to the husband.  I think $15,000 would cover the husband’s travel costs, accommodation expenses and legal fees in instigating a return.  The husband sought that the figure should be $30,000 but on the evidence that I have heard, that would make the prospect of the travel impossible.  It would not be appropriate to simply fix a figure knowing that it could not be attained where all other indicators had been met.

4. The issue which is of more concern is the question of the impact upon the relationship between the husband and the child.  All of the matters to which I have referred above as set out by the husband are of concern.  The wife in her evidence referred to the time to “repair” the relationship.  There is a significant issue here and the child is a vulnerable child.  I therefore consider that two months is too long.  It would seem to me that missing about one period of overnight time might be acceptable providing the appropriate telephone and/or electronic communications occurred whilst the child was away.

5. As I have pointed out, the decision must be made in the best interests of the child.  The wife acknowledges the importance of the relationship between the husband and the child and in my view, that must take precedence over any other relationship.  The factors in s 60CC of the Act provide little assistance in this case because each party otherwise acknowledges the importance of the other in the life of the child.  Accordingly, I am satisfied that it is in the child’s best interest that she be able to travel but also be able to miss a very limited period of time with her father.  The husband suggested that 30 days should be the allocated time to travel and I agree.  That period of time must include the travelling to and from Australia.  I do not accept that a short trip to Europe is a waste of time or too expensive when it is the interests of a child of the child’s age that is being considered.  I also consider that it is important that at least on this occasion, the wife give some comfort to the husband by providing a security bond of $15,000.

I certify that the preceding Forty Eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 13 May 2011.

Associate: 

Date:  13 May 2011