Ta and ARA
[2003] FMCAfam 563
•30 October 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TA & ARA | [2003] FMCAfam 563 |
| FAMILY LAW – Children – application to remove children from Australia – taking children out of jurisdiction for holiday – security for overseas travel. Family Law Act 1975 (Cth) Kuebler (1978) FLC 90-433 |
| Applicant: | A T |
| Respondent: | R A A |
| File No: | PAM 2560 of 2003 |
| Delivered on: | 30 October 2003 |
| Delivered at: | Parramatta |
| Hearing date: | 30 October 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
The Applicant appeared on his own behalf.
| Solicitor for the Respondent: | Ms Hunter |
| Solicitors for the Respondent: | Legal Aid Commission of NSW |
ORDERS
The Respondent Mother is permitted to take the children A T born
16 July 1996, and A T born 28 September 1998 out of Australia between 17th December 2003 and 1st February 2004.The Respondent Mother is permitted to take the said children to J and K for the purpose of a holiday in those two countries.
The Respondent Mother is restrained from taking the said children or either of them to I.
The Respondent Mother is to return both of the said children to the Commonwealth of Australia by 11.55pm on the 1st February 2004.
Pursuant to section 7A(2) of the Passport Act 1938 the child A T born 16 July 1996 be issued with an Australian Passport not withstanding the fact that the consent of the Applicant Father for the issue of a passport for the said child has not been obtained.
The Australian Federal Police are requested to remove the names of the said children from the Airport Watch List in force at all points of departure from Australia between the 16 December 2003 to 2 February 2004.
The Respondent Mother is to do all things necessary to cause the sum of FIVE THOUSAND DOLLARS ($5000.00) to be deposited with the Legal Aid Commission of New South Wales no later than the 12th December 2003.
The Legal Aid Commission of New South Wales is to hold the said sum of $5000.00 in an interest bearing deposit on trust for the parties pending the safe return of the said children to the Commonwealth of Australia but subject to any further Order of the Court or the receipt of the written authority of both parties as to the disbursement of the said sum.
Liberty to either party to apply in respect of any issue on three (3) days notice.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 2560 of 2003
| A T |
Applicant
And
| R A A |
Respondent
REASONS FOR JUDGMENT
Application
The application before the Court is the application of the father of two young children in which he seeks that the mother, his former wife, be restrained from obtaining a renewal of the Australian passport of the older child, A, and from taking the children out of the Commonwealth of Australia.
In her response, filed on the 30th September 2003, being an amended response, the mother has sought orders that the requirement or the consent of the wife to the renewal of the Australian passports for the children, A and A be dispensed with. She seeks an order permitting the children to travel to J and K for a holiday from the 17th December 2003 to the 1st February 2004, and an order that the names of the children be removed from the Airport Watch List maintained by the Australian Federal Police for the period from 17th December to the 1st February.
The relevant background is that the applicant and the respondent were married in J on 20 January 1995. They are both of P background, but due to the unfortunate circumstances that apply in respect of P, the mother was in fact born in K when her parents were working there in that country, but her nationality was J.
The mother is now an Australian citizen. The father is now an Australian citizen. There are two children of the marriage, A who was born on the 16th July 1996 and A, who was born on the 28th September 1998. Those children are both Australian citizens and have held Australian passports.
The applicant and the respondent were divorced in the year 2001. They were divorced in J. The respondent mother says that the applicant father required her to return to J with the children once the marriage came to an end. She said that she did not wish to remain living in J after a while, notwithstanding the fact that her extended family live in J and K, because she had formed the view that arrangements in Australia, for the children, would be better than those which she could obtain for them in J.
In particular, she says that the children are not entitled to J citizenship because their father is not J and they have not resided in J for a continuous period of 10 years. She says that if they do not hold Australian passports, they are not able to obtain a passport from any other country. The father denies that. The father is of the view that the mother has the ability to obtain J citizenship and passports for the children without his consent or, he believes, without his knowledge.
The mother's contention is that if she remains in J with the children, the father could obtain rights for the children to reside with him, which is not something that she desires.
This particular application is brought in the background of a dispute between the parties as to the father's contact with the children, although I note that there have been interim orders entered into, by consent, about contact and that contact has taken place. I note also that there are negotiations between the parties about further contact on an interim basis and I am not asked to make any decision about ongoing contact for the purpose of these proceedings today.
The mother says that she was obliged to remain in J for a considerable period of time, notwithstanding the fact that she wished to return to Australia with the children. She, as I earlier stated, holds Australian citizenship. As to the children, the passport of the child A expired. The mother made application to obtain a fresh Australian passport for the child, A, and signed that application on the 13th November 2002. In her application, she says:
“I, R, am applying for my son, A T, because we need to go back to Australia ASAP so A can start school over there in the new year because he's not J and has no other documentation for him. He needs to get back to have better education, and I can't afford him private school and because my son has an expired Australian passport and he does not have the right to the J passport, so we need to get back”.
The mother was interviewed at the Australian Embassy in A, and according to the departmental records she told the Vice Consul that she had been separated from her husband since October 1999, was divorced in J on the 27th May 2001, does not have an Australian divorce decree nor custody documents from the Family Court. She told the interviewer that she asked the father for him to give consent to the renewal of the passport for the child, A, but he refused. The Vice Consul also recorded:
“The mother claims she is not able to obtain a J passport for the minor. The mother's J passport does not allow the children to be added to it, that this child does not have any access to another nationality travel document”.
The matter was considered by the Department, and a recommendation was made that the child should be issued with a one-month limited validity passport, purely for the purpose of allowing him to enter Australia. The mother was able to return to Australia with the children, by means of a decision made on the 25th November 2002. I note that the mother's original passport application for the child had been made in January 2002, and the father had declined his consent.
As it would appear from the records of the Department of Foreign Affairs and Trade, the child, A, was effectively obliged to remain in J because of his lack of a travel document and it was not until the 25th November 2002 that a document was issued permitting him to return to the country of his citizenship and birth. I note from his passport that he was in fact born in Sydney.
The father explains his actions by saying that if he had consented to the issue of an Australian passport, the mother would have been free to have taken him, and of course the child, A, to anywhere in the world and that he would never have seen his children again, and he still fears that this is what the mother might do.
The father has pointed out that a perusal of the children's passports indicates that they were taken to the State of I. The mother explains that this was because for the children to remain in J on their Australian passports, they not being entitled to J passports, they had to have their visa renewed, and the visa could only be renewed outside J which resulted in their travelling to the W B and obtaining a visa in I.
The father has concerns about the children being taken to I, and points out that I, in his view, is a war zone and I can take judicial notice of the fact that in parts of I, at least, there is a considerable amount of war-like activity and it is not uncommon for violence involving the deaths of, not only service men and woman, but of civilians.
I am satisfied that a concern about taking a child to I, at this stage, is a concern based on reasonable grounds. I am not so satisfied that taking a child to other countries in the Middle East, be it on such safer grounds, although quite clearly Iraq would be a country where clearly one would not want to take a child at this stage. I am not aware of any civil unrest or state of hostilities in either J or K.
The mother says that she wishes to travel to J and K for the period of a holiday. She wishes to spend a total of some 6 weeks out of Australia. Two weeks in K, 4 weeks in J. She points out that she has family who reside in both of those countries. The father says that the mother's extended family could travel to Australia as they have done in the past and see the children here. The mother also has formed a new relationship, with one D B.
Indeed, the mother has since married this gentleman, under the law of the Commonwealth of Australia on 15 October 2003. Her new husband is an Australian citizen of Lebanese background. His family reside in Australia and they own real estate in Australia. He is in permanent employment in Australia, but has deposed in his affidavit that he has obtained leave for the purpose of travelling to J and K with his new wife. It was always the mother's intention that she and the children would travel with her then fiancé, now husband, and she referred, in her affidavit, to the fact that one of the reasons for the travel was so that her extended family could meet this gentleman. He is on affidavit and indicates his concurrence with that.
The law in these matters is set out in two authorities. which I propose to follow. First of all, I refer to the decision of the Full Court of the Family Court of Australia in the matter of Kuebler v Kuebler (1978) FLC 90-434. In that matter, the Full Court set out the factors that should be considered in applications to take children out of the jurisdiction. There are five:
a)the length of the proposed stay out of the jurisdiction;
b)the bona fides of the application;
c)the effect on the child of any deprivation of access, now contact;
d)any threats to the welfare of the child by the circumstances of the proposed environment;
e)the degree of satisfaction in which the Court has in its assessment of the parties that are promised to return to the jurisdiction would be on it.
I am mindful also of the decision on the Full Court of the Family Court of Australia in the decision of Line (1997) FLC 92-729. That case dealt with the fixing of an appropriate level of security for the return of children to Australia. There were four principles that the Court set out:
a)the purpose of the security. To provide a sum to realistically entice the person removing the child to return and to adequately provision the party remaining in Australia, to take action for the return of the children;
b)the degree of risk that the departing parent will not return;
c)whether the country of travel is a signatory to the Hague Convention on Child Abduction, and the likelihood of deviation to a non-convention country;
d)the financial circumstances of both parties and any hardship to either party if the level of security was increased or decreased.
The mother indicates that she believes that she can raise, immediately, a security deposit of some $3000, but if a higher amount was required, she believes that she could raise a higher amount.
Those are the principles that I must consider and I take the following matters into account:
(1)the length of stay out of Australia is relatively short. It is 2 weeks in K and 4 weeks in J, a total of 6 weeks. It is not a lengthy trip. It certainly has all the indices of a holiday. I look at the bona fides of the trip out of Australia. I am satisfied that the mother has shown good grounds for wishing to take her children out of Australia for the purpose of visiting her extended family in J and K. The children have spent some time living in J and, not only is that a part of their cultural heritage, they do also have the right to spend time with grandchildren and members of extended family. Indeed, the decision of the Family Court in Bright & Bright v Bright & Mackley (1995) FLC 92-570, makes it clear that there is a benefit to children in knowing that they are part of an extended family which includes access to grandparents and aunts and uncles;
(2)I look at the effect on the children of the deprivation of access with their father. The evidence before me is that the elder child, A, appears to react positively to contact with his father, although the mother is of the view that the younger child, A, who does not know her father so well, is still somewhat reticent;
(3)a lengthy stay out of Australia would not, to my mind, assist the children to build up this relationship with their father, but I am not persuaded that a stay out of Australia for only 6 weeks would have a negative effect;
(4)I look at any threats to the welfare of the children by the circumstances of the trip overseas. I could not justify any visit by the children to the State of I, and as I said, the father's concerns in this regard are genuine. There is no evidence before me, as I have said, of civil unrest or violence in either J of K, and provided the visit was confined to those two countries, I am of a view that there would be no unacceptable risk to the welfare of either child;
(5)it would appear to me also that provided the Court were to impose a realistic security deposit, the mother's promise of a return to Australia is one which would be likely to be kept. She is an Australian citizen, and her children are Australian citizens. She has recently married an Australian citizen with strong community ties in this country. Her husband is in employment and does not, at this stage, possess any travel document for any other country;
(6)the mother's efforts to return to Australia as shown by the documents produced from the Department of Foreign Affairs and Trade, indicate that she was attempting to obtain a passport for the child, A, to return to Australia for most of the year 2002. It would seem unlikely, at this stage, that she would have changed her mind so dramatically that she would wish to stay out of Australia when she was making efforts to return.
I am of a view that there are grounds for setting a security deposit, and it should be in such a sum that it should persuade the mother that there would be a need for her to return with the children and to return on time. It should not be set at such a level, which would be impossible to meet.
I have previously referred to the degree of risk that the departing parent would not return also, which coincides with the degree of satisfaction held by the Court that the mother would return, and I am of the view that the risk the mother would not return to Australia is low.
I am mindful of the fact that neither J nor K are signatories to the Hague Convention on Child Abduction, and clearly that is a matter which would cause the Court some concern. It is not uncommon for countries in that part of the world not to be part of the Hague Convention. I accept the fact that J and K are not New Zealand or the United States, which are such parties. Nevertheless, whilst I take that into account, I am satisfied that the mother's connection with Australia is such that her desire to remain outside of Australia and not return would be very small.
I look at the financial circumstances of the parties. The father is in employment. He is well qualified. He has a Masters Degree, he is an engineer and as he told the Court, he works with his brain rather than his muscle. He is obviously made a great success of his time in Australia and he is quite clearly a man who takes pride in his Australian citizenship and wishes to remain a strong citizen of this country, where he appears to have prospered by the event of hard work and brain power.
The mother has been in receipt of assistance from Centrelink, although that has now changed as a result of her marriage to Mr B. He is a man who is in employment and has family living in Australia. An amount of money, to my mind, could be raised if the parties were given sufficient time to do so. I am not of the belief that $3000 would be sufficient, but I do believe that $5000, which would take some time to arrange, is a matter that could be deposited as a security deposit.
I propose to make orders, which would permit the mother to take the children to J and K for the period from the 17th December to the 1st February.
I propose to make an order that would allow the child A, to obtain an Australia passport. I propose to require the mother to return the children by 1 February.
I propose to restrain the mother from taking either of the children to the State of I.
I propose to make an order suspending the children's names being placed on the Airport Watch List.
It is for these reasons that I make the Orders set out at the commencement of this decision.
I require a transcript of my reasons for this decision.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: C. Soliman
Date: 9 December 2003
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