Umbridge and Anor and Umbridge

[2007] FamCA 1425

FAMILY COURT OF AUSTRALIA

UMBRIDGE AND ANOR & UMBRIDGE		[2007] FamCA 1425
FAMILY LAW – CHILDREN – Holiday travel to India – Risk of child not returning to Australia – Security – Best interests of the child
Family Law Act 1975 (Cth)
APPLICANT:	Ms Umbridge
2ND APPLICANT	Mr M
RESPONDENT:	Mr Umbridge
FILE NUMBER:	SYF		7911	of	1998
DATE DELIVERED:	10 December 2007
PLACE DELIVERED:	Sydney
JUDGMENT OF:	The Hon. Justice Rose
HEARING DATES:	6 December 2007
REPRESENTATION
COUNSEL FOR THE APPLICANT:	Mr M. D. Broun QC
SOLICITOR FOR THE APPLICANT:	Autore & Associates
COUNSEL FOR 2ND APPLICANT:	Mr M. D. Broun QC
SOLICITOR FOR THE 2ND APPLICANT:	Autore & Associates
COUNSEL FOR THE RESPONDENT	Mr R. C. P. Mater
SOLICITOR FOR THE RESPONDENT	James Richardson

Orders

1. The mother (formerly known as …) may apply for a passport for the child … born … March 1994 without first obtaining the consent of the child’s father.

2. The child born … March 1994 is permitted to travel internationally on or before 17 December 2007 for the purpose of travel to India.

3. That the mother shall deposit with the Registry Manager of the Sydney Registry of the Court the passport of the child born … March 1994 on the first working day following the child’s return to Australia and such passport shall be held by the Registry Manager in safe custody until further Order.

4. That the Australian Federal Police are requested to remove the name of the child born … March 1994 from the Airport Watch List at all points of international arrivals and departure in Australia for the period 17 December 2007 until 30 January 2008.

5. That the Registry Manager shall forthwith furnish a sealed copy of the Orders made this day to the Australia Federal Police.

6. That all current parenting orders which make provision for the father to communicate or spend periods of time with the child born … March 1994 (“the child”) are suspended until further Order.

7. That the mother may travel with the child to India from 17 December 2007 and the child live with her in India until 30 January 2008 subject to Orders 8 and 9.

8. That the father may spend periods of time with the child between the hours of 9.00am and 6.00pm on each of the last 10 days of the child’s stay in India pursuant to the Orders made this day except for the last day of that stay and he shall collect the child from the premises resided in by the child with the mother and return her to those premises unless otherwise agreed between the parties.

9. That the father may spend such alternative or substituted periods of time with the child as the mother and father may agree upon.

10. That by way of security for the child’s return from travel with the mother to India pursuant to Order 7 the title to the property owned by the second applicant being … is charged as security for the amount of seventy-five thousand dollars [$75,000.00] and the father may lodge a Request in Form 11R and a caveat on the title to that property reflecting the interest in his favour created by that charge and this Order (“the charging order”).

11. That upon the child’s return to Australia pursuant to the Orders made this day, the father shall forthwith provide a withdrawal of the caveat in registrable form and all documents completed and executed by him which remove the registration of the charging order to the solicitors for the second applicant.

12. That the legal costs, stamp duty and registration fees incurred by the parties for preparation and registration of the documents referred to in Orders 10 and 11 shall be paid by the mother and the father equally.

13. That the Application of the mother for Final Orders filed 16 October 2007 and the Response of the father filed 26 November 2007 are stood over for Directions in a Registrar’s list at 11.30am 19 February 2008.

14. Liberty is granted to apply to set aside, vary or suspend all or any of the Orders made this day upon three (3) days written notice being given.

NOTATIONS:

1. The parties agree that Order 10 creates a caveatable interest for the purpose of the father lodging a caveat in accordance with that Order.

2. That notice has been given by the father to the mother for the purpose of him spending time with the child in India in accordance with Order 8.

3. That the father and the mother will ensure that each has details of their mobile telephone and/or landline telephone numbers which operate in Mumbai.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

File number:  SYF7911 of 1998

MS UMBRIDGE

Applicant

And

MR M
Second Applicant

And

MR UMBRIDGE

Respondent

REASONS FOR JUDGMENT

Introduction

1. By her Application in a Case filed 16^th October 2007 the applicant mother sought orders to enable her to obtain a passport for the child of the marriage without the father’s consent so as to enable the mother to take a holiday with the child in India for the period 1^st December 2007 to 24^th January 2008.

2. The father sought orders that the application of the mother be dismissed, that the parenting orders made 6^th March 2000 be varied in relation to the school holiday periods of time that he may spend with the child in accordance with his Response filed 26^th November 2007.

3. At the commencement of the hearing leave was granted to the mother unopposed for her to seek orders in accordance with the Minute of Orders which became Exhibit 2.  The mother sought orders that Mr M be joined as a second applicant and that the parenting orders made 6^th march 2000 be varied in relation to the periods of time that the father may spend with the child during school terms as well as school holiday periods and on other special occasions.

4. In addition the mother sought orders pursuant to Exhibit 2 in relation to her proposed travel with the child to India which included orders to facilitate the granting of a passport for the child as well as in respect of future annual travel to India.

5. It was acknowledged by counsel for the parties that Mr M, a friend of the mother, became an applicant and that there was no need for an order to join him in that capacity.  He was represented at the hearing by Senior Counsel and the solicitor for the mother.

6. The second applicant joined in the application of the mother as set forth in Exhibit 2 which provided for him to execute a charge over his property being … at W (“the second applicant’s property”) in terms that:-

   6.1The charge secures such amount as the Court may determine in the event that [the child] does not return to Australia pursuant to these Orders to provide to the father the costs of taking legal proceedings and other appropriate steps to recover [the child] from India to Australia up to an amount of $10,000.00.

7. As is apparent from Exhibit 2 the mother also sought an order that should the father travel to India at his expense whilst the mother and the child were in India pursuant to the orders sought by her then he “may spend time with [the child] for up to the last 10 days of [the child]’s visit, and if he wishes he travel with [the child] and the mother on their return to Australia.”

8. At the commencement of the hearing counsel for the father stated that the father sought dismissal of the mother’s application.  He contended that it was not in the best interests of the child to travel with the mother to India as there was a “significant risk of the mother not returning to Australia.”

9. Subsequently during the course of his submissions and following a brief adjournment to obtain further instructions counsel for the father informed me that the father’s position is that the mother be permitted to take the child to Mumbai if security is provided over unencumbered real estate in the form of a charge in the sum of $100,000.00 available to the father in the event of the child not being returned to Australia. Counsel pointed out that the initial position taken by the father to which I have referred was due amongst other things to the fact that the mother had not previously offered security for the child’s return.  It was conceded that if necessary a caveat reflecting the charge may be lodged on behalf of the father.

10. The father and mother were married on in August 1989 in Mumbai India.

11. The parties resided in Australia from 1989 until they finally separated on 31^st August 1998 other than periods in 1994 to January 1998 when the mother lived with the child in Mumbai.

12. The marriage was dissolved by decree absolute which I was informed was made on 25^th October 1999.

13. The mother is 50 years of age and engaged in home duties.

14. The father is 53 years of age, he works in the finance sector.

15. The child of the father and mother is 13 years of age having been born in March 1994.  The child has lived continuously with the mother subject to those periods of time spent with the father either pursuant to arrangements between the parties or in accordance with Court orders.

16. The parties have previously been engaged in litigation in this Court during the course of which parenting orders were made on 6^th March 2000 (“the current parenting orders”).  There followed an appeal to the Full Court and ultimately an appeal from the Full Court’s orders to the High Court.  More detailed historical background is found in the judgments of the High Court in U & U.[1]

    1.(2002) FLC 93-112.

17. The mother has lived with the child for the past nine years in Wollongong where they currently reside.

18. The father resides in the Sydney area.

Legal Relevant Principles

1. The proceedings before me are interim parenting proceedings. The conventional procedure is followed by me in relation to such proceedings, namely that the application be determined on the Papers subject to any application that may be made for leave to cross-examine the deponents and/or other witnesses.

2. Application was made by counsel for the father for leave to cross-examine the mother and the second applicant. Leave was granted unopposed. Cross-examination took place.  Submissions were then made.

3. Although no submissions were made in relation to relevant legal principles, senior counsel for the mother and the second applicant and very experienced counsel for the father, made submissions on the basis of whether or not the orders sought were in the best interests of the child.  That was consistent with the requirement in Section 60CA that for the purpose of deciding whether to make a parenting order in relation to a child “a Court must regard the best interests of the child as the paramount consideration.”  The Full Court in Goode & Goode[2] held that all relevant provisions pursuant to Part VII of the Act must be considered and applied regardless of whether the proceedings are interim parenting proceedings as opposed to final parenting proceedings.

   2.(2006) FLC 93-286.

4. No doubt having regard to the truncated nature of the hearing, counsel addressed me in relation to all relevant matters that fell for consideration pursuant to Section 60CC, without specifically referring to the description given in Section 60CC(2) and (3) of such relevant matters.  With respect to counsel, that was the proper approach for the conduct of these proceedings on behalf of their respective clients, given the limited but important factual issues that arose for consideration for the purpose of reaching a conclusion as to whether it was in the best interests of the child to make the orders as sought by the mother and the second applicant.  That is the approach that I will follow in this judgment.

5. No issue arose in relation to the presumption of equal shared parental responsibility pursuant to Section 61DA.  Indeed, submissions were not addressed to that issue.  The current parenting orders make provision for the parental responsibility for both the daily and long-term care, welfare and development of the child.[3]

   3.Orders 8 and 9.

Relevant matters

1. The mother gave extensive affidavit evidence in relation to the life that she has made in W for herself and the child for the past period of approximately nine years.

2. That evidence is that she and the child have lived continuously in W throughout that period.  The child has attended school in W and during last year as well as this year as a pupil at her current High School in W, with school fees being met by the maternal grandmother. There is no evidence to suggest that the child has anything other than a settled lifestyle in W and has progressed satisfactorily at and is content with her attendance at school. 

3. The father has lived in Sydney throughout the same period of time. Members of his extended family also live in Sydney.  The evidence of the mother is that she has been pro-active in ensuring opportunities for the child to maintain her relationship with members of the father’s extended family, and that they have reciprocated in the manner in which they have supported the child including attendance at a recent birthday and religious occasion for the child.  Those celebrations also took place in Sydney. 

4. The child has continued to spend periods of time with the father in accordance with the current parenting orders. The difficulties in their relationship appear to have been a combination of parental conflict, the father’s consistent opposition (at times qualified) to the child travelling to India for a holiday with her mother principally to see and spend time with the members of the mother’s extended family.

5. The mother has a close relationship with the second applicant which has been the nature of their relationship since about 2003.  The evidence of the mother is that the second applicant and the child have an extremely good relationship and that the second applicant has been fully involved in a range of the child’s educational and recreational activities, as well as providing financial support to the mother to assist her in meeting some of the child’s extra-curricular school activities.

6. Further evidence is that the child has consistently expressed a view over an extensive period of time of desiring to travel to India with the mother to see members of her family, including a cousin who she had met and been engaged with in ceremonies at the Commonwealth Games in Melbourne in 2006.

7. The mother’s evidence also is that the father has extended family members in Mumbai where members of her family also reside.

8. I accept the evidence of the mother. It was given in a detailed and plausible way and was not the subject of challenge during cross-examination. I make findings of fact accordingly.

9. The mother’s initial approach to her application was that financial security was not required to ensure her return with the child at the conclusion of the proposed travel to India. The father’s position in that regard is that he has expressed opposition to the child travelling with the mother to India unless there was financial security provided which he considered to be appropriate.  That is clear from the affidavits of the parties.

10. So far as financial security is concerned, the second applicant has offered to provide it in the terms to which I have previously referred.  During the course of his oral evidence he stated that he was prepared to consider an amount greater than $10,000.00 to be charged against the Title to the second applicant’s property upon receiving further legal advice.

11. Following a brief adjournment which I provided to the parties so that they could consider their respective positions further and take legal advice from counsel and solicitors, a submission was made by counsel for the father that the relevant amount to be the subject of a charge should be $100,000.00. Counsel for the mother and the second applicant submitted that the appropriate amount should be $50,000.00 on terms that the payment should only reflect the actual travel expenses of the father, and any legal proceedings which were necessary to be instituted by him in a Court exercising the relevant jurisdiction in India.

12. Exhibit 3 includes the confirmed itinerary for return air travel by the mother and the child from Sydney and Mumbai via Bangkok, departing 17^th December 2007 and returning 30^th January 2008.  Travel expenses have been paid.

13. The evidence of the father relevant to the application before me, as opposed to the respective applications seeking variation of the current parenting orders, is that he holds grave fears that the mother will not return with the child from India due to the history of her having “abducted” the child on two previous occasions, the lengthy litigation which ensued to which I have referred and the fact that India is not a signatory to the Hague Convention on Civil Aspects of International Child Abduction.

14. Counsel for the father referred me to the Reasons for Judgment given by O’Ryan J on 6^th March 2000. I accept his submissions in relation to the findings of fact which were made as set out in that Judgment which supports the assertions by the father in his affidavit evidence in terms of relevant historical matters.

Conclusion

1. I have determined that it is in the best interests of the child that she be given the opportunity for return holiday travel to India for the period referred to in Exhibit 3.  My reasons are as follows.

2. I made findings that the child has expressed consistent views that she would like holiday travel with the mother to India so as to meet and further develop a relationship with members of the mother’s extended family in Mumbai. There is no suggestion in the evidence, nor indeed was it put to the mother in cross-examination, that she and/or the child would be averse to the child also being able to develop a relationship in Mumbai with members of the father’s extended family.  Indeed an order which would permit that to take place, on the basis that the father would also be present, was sought by the mother and agreed to by the father.  He has given appropriate notice to enable the relevant period of time to occur.

3. It was submitted on behalf of the father that the mother’s history of having abducted the child and/or travelled to India with the child without prior notice to the father in 1994, and again in 1995, demonstrated the risk that arises in relation to the proposed travel by the mother with the child to India, having regard to her close relationship with family members in Mumbai and the evidence that she gave during the hearing before O’Ryan J in July 1999 of her preference for living in Mumbai, as opposed to Australia.  He further submitted that having regard to that relevant historical background, the continued “attractions” for the mother in Mumbai reinforces the risk that the mother will not return with the child to Australia and that “nothing has changed” since the mother’s earlier travel to India to which I have referred.

4. I do not accept those submissions.

5. Whilst I accept the evidence of the father that he has concerns as to whether the mother would return with the child to Australia if permitted to travel to India, what must be taken into account also is that the mother returned with the child to Australia of her own volition, has generally complied with the current parenting orders and there have been a number of significant and relevant changes in her life, and that of the child, since she settled in W approximately nine years ago.

6. Those changes are features of the life that has been led by the mother and the child in W consistent with my earlier findings that the mother has been settled in W throughout that lengthy period of time.  The child has also been settled in W, progressed in her personal and educational development without any problem or disruption by the mother.  The relationship between the child and the father has proceeded in accordance with the current parenting orders, important events in the child’s life have also involved members of the father’s extended family in Sydney brought about largely by the active encouragement and support given by the mother.

1. In addition, the mother now has a committed relationship with the second applicant with whom the child has a good relationship which has developed over some years.

2. When the hearing commenced I was informed by counsel for the father that amongst the reasons for his opposition to the mother’s proposed travel to India was that there was implicitly a risk for the safety of the child due to a travel caution issued by the Department of Foreign Affairs.  In any event the relevant documentation was not tendered and as a result I do not have evidence of those matters.

3. No further submission was made in relation to that issue.

4. I have earlier referred to a real issue that emerged which was the provision of appropriate security for the return of the child to Australia. It was clear from the affidavit evidence of the mother, and not denied in the responding affidavit of the father, that he had agreed in principle to the child travelling with the mother for a holiday in India subject to appropriate security being given.

5. The second applicant’s property is unencumbered.  He purchased it in 2000 for $162,000.00.  There is no evidence of its current market value.  He consents to the Title being charged with an amount payable to the father in the event that the mother does not return the child to Australia at the conclusion of the proposed holiday travel to India.  The issue that emerged from counsel’s submissions was the quantum to be so secured.

6. Senior counsel for the mother submitted that an appropriate amount was $50,000.00 on terms that the father should be reimbursed for reasonable travel and legal expenses in the event of the child not being returned to Australia.

7. Counsel for the father submitted that the appropriate amount should be $100,000.00, such an amount would also represent a disincentive to the mother failing to return with the child to Australia.  I expressed a difficulty to counsel for the parties in that there was no reliable evidence to support one amount or the other and that as a result I was left in a position of having to make an arbitrary decision should I be of the view that it was in the child’s best interest to be able to have holiday travel with the mother to India.  Counsel accepted that that indeed was the position, especially as I was not persuaded that any weight should be given to the hearsay evidence of the mother that an Indian lawyer had purportedly advised her that the sum of $10,000.00 was appropriate.  No expert evidence was adduced in relation to the basis for the respective submissions made by counsel.  Indeed, although the mother gave a summary of what she understood to be previous parenting orders made by a Court in India, which she contended to be still current, a copy of such orders was not tendered.  Counsel for the father informed me that his instructions were that his client was unaware of those orders.

8. I accept the submission made by counsel for the father that the amount to be the subject of the charge should reflect, inter alia, an inducement to the mother to comply with any orders that I may make, as well as the weight that should be given to historical findings of fact made in the Judgment given 6^th March 2000,[4] and that India is not a signatory to the Hague Convention.

   4.Ibid.

9. In those circumstances, and doing the best I can given the lack of evidence of a range of likely travel accommodation and legal expenses in India and taking into account counsel’s submissions regarding the appropriate amount, I have concluded that the relevant amount will be $75,000.00.  In arriving at that amount, I have also taken into account the findings that I have made based on my acceptance of the evidence of the mother that there is “no risk” of her not returning with the child to Australia, the settled life that both she and the child have enjoyed for the past nine years, the willingness of the second applicant to provide his unencumbered property as security and the lack of evidence by him indicating any upper limit so far as the amount of security is concerned.

10. As arranged by counsel for the parties, my associate was informed by email dated 7^th December 2007 of the relevant documentation for the purpose of registering a charging order to the Title to the second applicant’s property, the terms of a charging order which may be made in these proceedings. The appropriate form is a “Request” Form 11R to which Court orders are attached to enable registration against the Title.  The documentation so received in Exhibit 4.  Appropriate orders will be made.

11. Submissions were also made regarding the possible liability of the father or the mother for the legal fees in relation to registration of the relevant order against the Title to the property of the second applicant.  I will make an order that the father and mother be equally responsible for such fees in the circumstance that neither party was successful in relation to the amount that should be reflected in the charging order.

12. The period of time that the father may spend with the child in Mumbai, namely the last 10 days of the proposed travel, was not in issue.  However, counsel for the father submitted that such period also include overnight with the father.  I am not persuaded that such an order should be made in the best interests of the child given that there is an absence of any evidence of her views in that regard.  Her views would surely have to be taken into account, so far as I am concerned, given that the child is 13 years of age.  Accordingly a parenting order providing for overnight periods of time which may be spent by the father with the child in Mumbai will not be made.

13. So as to give the father and mother flexibility in arrangements for the periods of time to be spent by the father with the child, I will make an order enabling them to make substituted or alternative arrangements.

14. The pending application of the mother for orders permitting further holiday travel by the child to India and the respective applications for orders varying the current parenting proceedings will be stood over for mention in a Registrar’s list at 11.30am on 19^th February 2008.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate

Dated:  10 December 2007