Terim and Nabi

[2019] FamCA 541

FAMILY COURT OF AUSTRALIA

TERIM & NABI [2019] FamCA 541

FAMILY LAW – CHILDREN – overseas travel – where the child has been on the airport watch list since 2012 – where the mother seeks that she be able to take the child to Turkey to visit the maternal family – where the father opposes the application – where the father submits that there is a risk the mother will not return – where the mother’s sister is terminally ill – where the mother has demonstrated ties to Australia – where Turkey is a Hague Convention country – order that the mother be permitted to take the child on holiday to Turkey – order that the mother provide financial security.

Family Law Act 1975 (Cth)

Line & Line (1997) FLC 92-729

APPLICANT: Ms Terim

RESPONDENT: Mr Nabi

FILE NUMBER: MLC 7836 of 2012

DATE DELIVERED: 13 August 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 18 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Morkos

SOLICITOR FOR THE APPLICANT: HEP Steel

THE RESPONDENT: In person

Orders

1. That the child Y born … 2011 be permitted to travel with the mother, Ms Terim born in 1972 to Turkey upon the following conditions:-

   (a)The child shall not depart the Commonwealth of Australia any earlier than 19 September 2019; and

   (b)       The child must return to Australia by no later than 17 October 2019.

2. That no less than 14 days prior to the intended departure, the mother provide to the father a detailed written itinerary of the proposed travel, including:-

   (a)       The date of departure and return;

   (b)       The flight details and times;

   (c)All locations and destinations of travel and persons accompanying the child;

   (d)       Address and contact telephone numbers for the period of travel;

   (e)Evidence of pre-paid and receipted return air tickets for the mother and the child;

   (f)       Evidence of travel insurance for the child and the mother;

   (g)Email address and telephone number upon which the child may be contacted during the proposed travel.

3. That no later than seven days prior to the day of departure the mother shall deposit into her solicitor’s trust account the sum of $5,000, such sum to be held on trust by way of security in respect of the return of the child Y to Australia by 17 October 2019, and:-

   (a)the mother shall be and is hereby restrained from causing or permitting any dealing in respect of that sum other than in accordance with these orders; and

   (b)the mother’s solicitors provide to the father confirmation of the receipt of funds.

4. That upon the mother’s return with the child to Australia, Order 3 shall be discharged and the mother be at liberty to deal with the security monies.

5. That in the event that Y is not returned to Australia by 4.00pm on 17 October 2019, then by this order, the mother irrevocably authorises and directs her solicitors to forthwith pay to the father the security payment and the father shall thereafter be at liberty to apply the security payment to legal costs and disbursements arising as a consequence of the mother’s failure to comply with these orders.

6. That during the period of the child’s travel to Turkey, the mother do all such acts as may be required to facilitate the child having telephone communication with the father within four hours of her arrival in Turkey and each alternate day thereafter and within four hours of her return to Australia.

7. That within 7 days the mother and the father do all acts and things as may be required to apply for an Australian passport for Y.

8. In the event that the father does not comply with Order 7 hereof  the mother be authorised pursuant to s 11 of the Australian Passports Act 2005 (Cth) to execute all documents necessary to obtain a passport for and on behalf of Y.

9. That the child Y born in 2011 be removed from the Airport Watch List for the period 19 September 2019 to 17 October 2019 inclusive only for the purpose of enabling Y to travel with the mother to Turkey pursuant to Order 1 hereof.

10. That the Amended Initiating Application filed 31 May 2019 and the Response filed 6 February 2019 be otherwise dismissed.

11. That 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.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7836 of 2012

Ms Terim

Applicant

And

Mr Nabi

Respondent

REASONS FOR JUDGMENT

Introduction

1. The issue for determination in this matter is whether the applicant mother should be permitted to travel to Turkey with the parties’ child, Y, aged eight. 

2. Currently, there is an Airport Watch List order in place.  That order was made in 2012.  The mother seeks the removal of that restriction, the ability to obtain an Australian passport for the child and the opportunity to travel to Turkey with the child in order to visit the mother’s sister, who is being treated for a terminal illness, as well as other members of the maternal and paternal families. 

3. The application is opposed by the father who submits that there is a real risk that the mother will travel to Turkey with the child and not return.

4. These are my Reasons for Judgment with respect to those issues.

Background

1. The mother is aged 47 years.  She was born in Turkey but has lived in Australia since 2008.  She is an Australian citizen.

2. The father is aged 48 years.  He too was born in Turkey but has lived in Australia for many years.  During the course of his submissions he confirmed that he has no plans to return to Turkey as to do so would expose him to the risk of criminal prosecution due to his failure to present for national service in that country.

3. The parties commenced their relationship in 2007 and commenced living together in Australia in 2008. 

4. The child was born in 2011 and is aged eight years. 

5. The mother also has a child from another relationship, X who is aged almost 16 years.

6. The parties separated in 2012.  That year proceedings commenced in the Federal Circuit Court.  Y was placed on the Airport Watch List pursuant to orders made in those proceedings on 3 October 2012. 

7. Final parenting orders were made in the Federal Circuit Court on 13 February 2014.  Those orders provide that Y live with the mother and spend time with the father on a gradually increasing basis. 

8. Since that time, the parties have engaged in family dispute resolution, most recently in 2017.  At that time the parties entered into a parenting plan regarding the arrangements for Y to spend time with the father. 

9. The mother deposes that in December 2018 her sister, who resides in Turkey, was diagnosed with terminal illness.  The mother filed an application in the Federal Circuit Court at that time seeking orders permitting the child to be removed from the Airport Watch List to enable her to travel to Turkey to visit family members.  The mother also sought orders to permit her to apply for Turkish citizenship for the child, and to obtain a Turkish passport.

10. That application was transferred for hearing to this Court pursuant to orders made by Judge Riethmuller on 6 February, 2019.

11. On 8 May 2019 trial directions were made listing the matter for hearing on a date to be fixed.  The matter was listed for hearing before me on 18 July 2019.

Material relied upon

1. The applicant mother relies upon the following material:-

   ·    Amended Initiating Application filed 31 May 2019;

   ·    Affidavit of the mother filed 6 May 2019;

   ·    Affidavit of the mother filed 31 May 2019;

   ·    Outline of case document filed 16 July 2019.

2. The respondent father relies upon the following material:-

   ·    Response to Initiating Application filed 6 February 2019;

   ·    Affidavit of the father filed 6 February 2019;

   ·    Notice of Risk filed 6 February 2019; and

   ·    Affidavit of the father filed 16 July 2019.

The hearing

1. As the father was unrepresented, prior to the commencement of the hearing, I informed the parties of the manner in which the trial would proceed, including the right which each party had to cross-examine the other.  The father sought the opportunity to cross-examine the mother with respect to her proposals.  There was no cross-examination of the father.

2. I also informed the parties as to matters to which I should have regard in the exercise of my discretion as to whether or not the mother should be permitted to travel to Turkey with the child, as identified in the Full Court decision of Line & Line (1997) FLC 92-729. Those matters include:-

   ·The degree of risk that the mother once permitted to leave Australia, will not return.  In assessing that risk, consideration of:-

   (a)whether the mother has continuing ties with Australia;

   (b)The existence and strength of possible motives for the mother not to return to Australia;

   (c)The existence and strength of motives to remain in Turkey;

   ·Whether security has been offered by the mother;

   ·The parties’ financial circumstances, including the hardship suffered by the mother by the imposition of security as compared with the father’s hardship if security is fixed at a lesser amount; and

   ·Whether the proposed destination is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction 1980 (“the Hague Convention”).

3. I also confirmed that in determining this matter, the best interests of the child is the paramount consideration, and that in determining best interests, I must consider the factors identified in s 60CC of the Family Law Act 1975.

Orders sought by the mother

1. The mother seeks orders in the following terms:-

   (1)The Court requests that the Australian Federal Police remove Y born … 2011 (“the child”) from the Airport Watch List at all points of international arrivals and departures in Australia.

   (2)That as soon as practicable the Solicitor for the Mother serve a sealed copy of the Order upon the Proper Officer of the Australian Federal Police at Melbourne who is requested and empowered to give operation thereto.

   (3)That pursuant to s65Y of the Family Law Act 1975, the parties be permitted to take the child Y born … 2011, out of the Commonwealth of Australia and travel with the child provided that:-

   (a)The party travels with the child for the entire period during which the child is travelling unless otherwise agreed in writing between the parties.

   (b)The travelling parent provide the non-travelling parent with copies of return tickets for the child at least 28 days prior to the departure.

   (4)The travelling party shall not less than six (6) weeks prior to the intended departure, provide the other party with, a detailed written itinerary of the proposed trip:-

   (a)Including the date of departure and return.

   (b)Flight details and times.

   (c)All locations and destinations of travel and persons accompanying the child.

   (d)Details of accommodation for the entire period of travel (including if applicable, the name of accommodation, address and telephone and email contact details).

   (5)The travelling party shall not less than four (4) weeks prior to the intended departure provide the other party with:-

   (a)A copy of the booked tickets in the party’s and child’s name (either the hard copy or written confirmation of the tickets from an [sic] travel agent or airline) for the departure and return flights;

   (b)Confirmation of travel insurance and overseas health insurance for the travelling party and the child;

   (c)A copy of the full itinerary; and

   (d)Details of an email address or telephone number at which the child and party can be contacted during the trip.

   (6)That pursuant to s 11(1)(b) of Australian Passports Act 2005, it is hereby ordered that the child Y born in 2011 be issued with an Australian travel document.

   (7)That pursuant to s 11(1)(b)(ii) of Australian Passports Act 2005 and these orders, the child Y born … 2011 be permitted to travel outside the Commonwealth of Australia using an Australian travel document.

   (8)That the parties will do all acts and things and sign all documents, within seven (7) days of the date of these orders, necessary to make application to the Australian Passport Office (or such other department or instrumentality administering the Australian Passports Act 2005) to enable the child Y born in 2011 to be issued with an Australian travel document.

   (9)The mother is authorised and permitted to apply for and receive an Australian passport for the said child Y born … 2011 without first obtaining the written consent of the father.

   (10)That if a part [sic] is travelling overseas with the child the party must arrange for the child to telephone the other party, within four (4) hours of arrival at the intended destination and on each alternate day during the period of the trip, and within four (4) hours of arrival back into Australia.

   (11)That it is declared that the child’s permanent and habitual place of residence is the Commonwealth of Australia and that permanent and habitual place of residence is not affected by any travel undertaken by the child outside of the Commonwealth of Australia other than by further Order of the Court, or agreement in writing between the parties.

   (12)Any other Order as deemed suitable by this Honourable Court.

2. During the opening of her case, counsel for the applicant confirmed that the mother proposes to travel with the child to Turkey for a period of 2 weeks during the September 2019 term holidays, which commence on 20 September 2019.  Further, it was confirmed that the mother does not press her earlier applications made that she be permitted to apply for Turkish citizenship and a Turkish passport for the child. 

What are the mother’s reasons for travel?

1. In her two affidavits filed and during her oral evidence, the mother confirmed that her primary motivation for seeking to travel to Turkey is to visit her sister who has a terminal illness.  The mother was cross-examined by the father with respect to the circumstances of her sister’s illness.  In her oral evidence the mother confirmed that her sister had undergone treatment and remained unwell.  As a result of her treatment her sister is unable to travel to Australia. 

2. In addition, the mother deposes that she has extended family in Turkey and wishes for the child to have the opportunity of spending time with both the maternal and paternal families in Turkey.  She deposes that the child last travelled with her to Turkey in 2011 when she was a few months old.  The mother seeks the opportunity for the child to connect with extended family members and with her Turkish heritage.

3. There was no challenge to the mother’s evidence with respect to those matters and I am satisfied that the mother’s reasons for travel are bona fide.  I am also satisfied that there will be benefits to the child in having the opportunity to spend time with members of her extended family and to experience and learn more of her Turkish culture.

Why does the father oppose travel?

1. The father’s position with respect to the mother’s proposed travel can be summarised as follows:-

   ·The mother has no real ties to Australia and there is a significant risk that she will not return the child to Australia.

   ·There is no need for the mother to travel to Turkey with the child.  He points to the fact that previously the mother’s family have travelled to visit the mother and the child here.

   ·The security offered by the mother is inadequate.

   ·The mother’s application to travel is motivated by her desire to limit the father’s time with the child.

   ·The child is an Australian citizen and should remain here.

What are the mother’s ties to Australia?

1. The mother deposes that she has lived in Australia since 2008 and that she holds Australian citizenship. 

2. Further, the mother deposes that she has a long-term relationship with her partner in Australia, having been in that relationship for a period of approximately two years. 

3. The mother deposes that she has obtained certificate qualifications in accounting, bookkeeping and as a teachers’ aide.  She is currently employed on a part-time basis as an assistant.  She deposes that she has applied for government funding to assist in the establishment of a business.  The mother was cross-examined about her plans to commence her own business; she confirmed that she has made application for government funding and that she will learn the outcome of that application at the end of July 2019.

4. The mother confirmed her commitment to return with the child to live in Australia

5. The child was born in Australia and has lived in Australia all of her life.  

What security is offered by the mother?

1. The mother made no offer of security in her filed material.  During her oral evidence, the mother confirmed she had limited ability to offer security to the father given her modest financial circumstances.  She is currently employed as a teachers’ aide, working part-time and has an income of approximately $1,000 per fortnight.  The mother resides in government housing and has done so since 2012.  She is only able to travel with the financial assistance of family members.

2. During the course of her oral evidence the possibility of raising security from her family members or her partner was flagged.  Her partner, who was present in court confirmed that he could offer $5,000 to be held in the trust account of the mother’s lawyer by way of security.

3. I accept the mother’s evidence that she does not have the ability to raise any greater amount by way of security.  Although a modest sum, that amount would likely enable the father to engage lawyers or travel to Turkey should the need arise.

Hague Convention

1. The Hague Convention provides a mechanism for the prompt return of wrongfully removed or retained children between contracting states.  Both Australia and Turkey are contracting states to the Hague Convention.

2. The father asserts that Turkey “has high corruption at all levels” and questions the likelihood of the child being returned to Australia in accordance with the provisions of the Hague Convention.  There is no evidence to support that contention.

3. The father questions the bona fides of the mother’s application, particularly given that her application initially sought an order for the mother to obtain Turkish citizenship and a Turkish passport for the child.  The mother was cross-examined in relation to that aspect of her application.  She confirmed during her oral evidence that initially she considered that it would be important and helpful for the child to have Turkish citizenship. 

4. However, the mother abandoned that part of her application, given that the child will be able to make decisions regarding those matters upon turning 18 years.  The mother confirmed that her primary focus was travelling to Turkey to visit her sister.

CONCLUSION

1. The mother’s evidence confirms her intention to provide prior written notice to the father of her proposed travel together with an itinerary, contact details whilst overseas and evidence of return air fares.  She also proposes to facilitate frequent telephone communication between the father and the child during the period of travel.  The father conceded that such arrangement was appropriate if travel was permitted.

1. There was no challenge to the mother’s parenting or her commitment to the child.  Further, there was no suggestion that the basis for the mother’s urgent need to travel, namely her sister’s illness, was not bona fide.

2. Whilst the father submitted that the mother does not support his relationship with the child, he confirms in his first affidavit that the child was left in his care for a period of three-and-a-half weeks when the mother travelled to Turkey in early 2019.  Although he deposed in his second affidavit that the mother had refused his time with the child, there is no evidence before the Court to support that contention and the father has made no application with respect to those matters.  At the time of the hearing the father was spending time with the child in accordance with the current parenting plan.  The father did not cross-examine the mother regarding these matters.  Accordingly I do not accept his assertion that the mother’s applicant is an attempt by her to deprive the child of a relationship with the father.

3. The father asserted that the mother would not return and doubted the capacity of the Turkish authorities to return the child to Australia pursuant to the provisions of the Hague Convention.  He adduced no evidence to support that submission.

4. Having heard the father’s submissions, I am satisfied that he does not trust the mother.  However, that distrust is not a basis for refusing the mother’s application.  The mother submits, and I accept, that the opportunity to travel to Turkey to visit members of her extended family will provide the child with a rich and positive experience.  Not only will the child meet with and interact personally with her family members, she will also have the opportunity to learn more of her Turkish heritage. 

5. I accept that the mother has continuing ties with Australia.  Whilst she does not hold real property in this country, she has lived here since 2008, has obtained citizenship and is settled in this country.  She has secured employment and a long-term relationship.  The mother has ambition to commence her own business and has actively sought funding for that enterprise.

6. Further, the mother through her partner has offered security of $5,000.  Whilst that is a modest amount, it is evidence of the mother’s commitment to return to Australia. 

7. I also accept that the child has been born and raised in Australia and knows no other than the Australian way of life.  The child attends a local school and likely has strong connections with her school and community.

8. Having regard to all of those factors, I am satisfied on the balance of probabilities that the risk that the mother will deliberately not return the child to Australia if permitted to travel to Turkey is low. Further, I am satisfied that the child’s best interests will be met by permitting her to travel to Turkey for a holiday with her mother for a period of two weeks during September and October 2019. 

9. Whilst the mother sought orders to permit both she and the father to travel overseas at any time upon notice to the other, I am not satisfied that such order is appropriate.  The child has been on the Airport Watch List since 2012.  As I have already noted there is significant distrust between the parties.  The reality is that given the mother’s financial circumstances, the prospect of her having the ability to travel beyond this proposed trip is extremely limited.  The father confirms he has no intention to travel with the child outside of Australia. 

10. Having regard to those matters in my view, the Airport Watch List order should be lifted for the purposes of the currently proposed travel only. 

11. Therefore, I make orders as appear at the commencement of these reasons.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 13 August 2019.

Associate: 

Date:  13 August 2019