WAKIM & KAVAN

[2019] FCCA 1149

FEDERAL CIRCUIT COURT OF AUSTRALIA

WAKIM & KAVAN [2019] FCCA 1149

Catchwords:
FAMILY LAW – Interim application – travel overseas – non-Hague Convention country.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 64B, 65Z

Cases cited:

Goode & Goode [2006] FamCA 1346

In the Marriage of Kuebler, P and Kuebler (1978) FLC 90-434

Line & Line (1996) 21 FamLR 156

Applicant: MR WAKIM

Respondent: MS KAVAN

File Number: SYC 8322 of 2018

Judgment of: Judge M Neville

Hearing date: 17 April 2019

Date of Last Submission: 17 April 2019

Delivered at: Sydney

Delivered on: 2 May 2019

REPRESENTATION

Solicitors for the Applicant: Mr Larque of Marsdens Law Group

Respondent: Self-represented

THE COURT ORDERS:

1. That the Father’s interim application is dismissed.

2. Pending further order, the Father, Mr Wakim, his servants or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child X (born … 2015) from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Watch List in force at all points of arrival and departure by air or sea in the Commonwealth of Australia and maintain the child’s name on the Watch List until the Court orders its removal.

3. Pending further order, the child is to live with the Father.

4. Pending further order, in the event that the Father is not available to care for the child during any period in which the Father intends to travel outside of Australia, X is to live with the Mother during that period of travel and the Father is to provide no less than 7 days’ notice of his intention to travel to the Mother prior to the intended date of departure.

5. Pursuant to s.11F of the Family Law Act 1975, the parties attend a Child Dispute Conference with a Family Consultant nominated by the Child Dispute Section on Level 2 in this Registry on 27 May 2019 at a time to be advised by that Section and pursuant to section 11C of the Act, such conference be reportable.  The parties are advised that if a person fails to comply with this order or any instruction the consultant gives to the person, the consultant must report the failure to the Court.

6. The matter be adjourned to 19 June 2019 at 9.30am for mention.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 8322 of 2018

MR WAKIM

Applicant

And

MS KAVAN

Respondent

REASONS FOR JUDGMENT

1. X (born … 2015) is presently aged 4 years old.

2. His Father, Mr Wakim (“the Father”) makes application to be permitted to remove X from the Commonwealth of Australia to travel to Country A between 18 May 2019 and 15 June 2019.

3. X’s Mother, Ms Kavan (“the Mother”) opposes that application. She seeks orders that, inter alia, she care for X during the proposed period of travel and orders that X’s name be placed on the Airport Watch List. She also seeks orders that she care for X in the event the Father travels to Country A between 18 May 2019 and 15 June 2019, and otherwise for time with X every second weekend.

Procedural Background

1. The matter was listed on 8 April 2019 for a first return date. On that occasion, the issue of the Father’s desire to travel with X was raised. Given that the Father had booked, but not yet paid for tickets and given that  the proposed dates of travel were a little short of 6 weeks away, the matter was listed for an urgent interim hearing on the travel issue. That hearing occurred on 16 April 2019.

Background

1. X’s Father was born in Country A on … 1988. He came to Australia in 2009. He secured permanent residence in 2016 and has a current application for Australian citizenship afoot. Since his arrival in Australia the Father has lived in Sydney. He has one cousin in Australia, Mr B. He resides with Mr B and Mr B is, apparently, involved in X’s day to day care.

2. X’s Mother was born in Australia. She has 3 children from prior relationships – Mr D, aged 23, Ms E aged 18 years and F aged 12.

3. The parties met via an online dating website in 2013. At that time, the Mother was living in Town G and the Father was in Sydney. They travelled between Sydney and Town G to see each other.

4. The parties were married in an Islamic ceremony on … 2014 and in a civil ceremony on … 2014.

5. In … 2014, the Mother relocated from Town G to Sydney to live with the Father.

6. X was born on … 2015.

7. The parties separated on a final basis on 31 October 2015 and after separation, X remained with his Mother and spent increasing time with his Father as X got older.

8. X has travelled to Country A with his Father on 3 occasions – … 2017 for a period of 3 weeks; … 2018 for approximately 2 weeks; and in … 2018 (“the … 2018 trip”) for approximately 2½ weeks. The Mother gave her consent to the travel on each occasion.

9. At some point in time close to the … 2018 trip, the parents commenced discussions about X remaining in Country A with his paternal family.

10. During the … 2018 trip, the Father emailed the Mother seeking her consent for X to remain in Country A. The Mother did not give her consent and X returned to Australia with his Father.

11. In … 2018, the Father notified the Mother that he needed to travel again to Country A. He asked her to either look after X whilst he was away or to allow X to travel with him. The parties struggled to reach agreement themselves on this issue and on 5 December 2018 they attended mediation. They agreed that whilst the Father travelled to Country A from January – March 2019, X would be cared for by the Mother and the Father would pay $1000 toward child care costs.

12. Apparently there was some breakdown between the parents in relation to the mediated agreement and prior to the Father’s departure, the Mother informed the Father she would not be in a position to care for X during the proposed period of travel. She declined to give consent for X to travel with the Father and refused to provide X’s passport to the Father.

13. The Father commenced proceedings in this Court on 24 December 2018 for orders facilitating X’s travel with the Father between January and March 2019.

14. After the commencement of proceedings, apparently a further agreement was reached between the parents in similar terms to the mediation agreement made on 5 December 2018. Parenting orders were – at that stage – apparently unnecessary and there are no current parenting orders in place.

15. On 4 January 2019 the Father departed Australia for Country A. X remained in Australia with the Mother.

16. Whilst the Father was overseas, there was a breakdown in the arrangements for the payment of child care fees. On 1 or 4 February 2019, the Mother decided to cease care for X and left X in the care of Mr B, the Father’s cousin.

17. The Father then ended his trip early and returned to Australia. He resumed care of X. X has lived with the Father continuously since that time. There have been ongoing difficulties between the parties in facilitating time between X and the Mother.

18. The Father now wishes to travel to Country A again for the period 18 May 2019 to 15 June 2019. The purpose of the travel is to celebrate Eid-Ui-Fitr with the paternal family. The Mother opposes X leaving Australia and seeks orders that she care for X whilst the Father is travelling.

The Law

Approach to interim proceedings

1. As the Full Court observed in Goode & Goode [2006] FamCA 1346 (“Goode & Goode”).

   68. …the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

2. Relevantly for the scope of the present application, the pathway for interim hearings, laid down in Goode & Goode is:

   a)Identifying the competing proposals of the parties;

   b)Identifying the issues in dispute in the interim hearing;

   c)Identifying any agreed or uncontested relevant facts;

   d)Considering the matters in s 60CC that are relevant and, if possible, making findings about the (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place).

3. Section 65Z(1) of the Act provides (relevantly) that where an application for a parenting order is on foot, a person who was a party to the proceedings in which the order was made must not take or send the child concerned from Australia to a place outside of Australia except as permitted by subsection (2).

4. Section 65Z(2) provides that subsection (1) does not prohibit taking or sending a child outside of Australia if:

   (a)  it is done with the consent in writing (authenticated as prescribed) of each other party to the Part VII proceedings; or

   (b)  it is done in accordance with an order of a court made, under this Part or under a law of a State or Territory, after the institution of the Part VII proceedings.

5. Accordingly the sending or taking of a child outside of Australia can only be undertaken with the written consent of the other party (or parties) to the parenting order or to the application

6. An application for an order permitting travel involves an aspect of parental responsibility. It therefore falls within the definition of “parenting order” at s 64B of the Act. Applications for parenting orders are to be determined on the basis that the best interests of the child are the paramount consideration.

7. The best interests of the child are determined in accordance with s 60CC of the Act. The primary consideration in determining a child’s best interests are the benefit to the child of having a meaningful relationship with each parent and the need to protect the child from physical or psychological harm, abuse, neglect of family violence: s 60CC(2). Of the two primary considerations, the court is to give greater weight to the need to protect the child.

8. Section 60CC(3) sets out the balance of the matters to be considered by the Court in determining what is in a child’s best interests. Relevant to the current proceedings are the following factors:

   Section 60CC(3)(b) – the nature of the child’s relationship with each parent and any other person including grandparents or other relatives;

   Section 60CC(3)(e) – the likely effect of any changes in the child’s circumstances including the likely effect on the child of separation from either parent, or any other child or person with whom the child has been living.

   Section 60CC(3)(f) – the capacity of each parent and any other person to provide for the needs of the child, including emotional and intellectual needs.

   Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the parents

9. In a case such as this when the Court is asked to exercise jurisdiction to allow a child to travel outside of Australia, the Court must weigh the benefit of overseas travel against the risks involved, in particular, the risk of non-return of the child.

10. When assessing the risk associated with overseas travel, particular considerations arise. These considerations have been set out in the decisions of In the Marriage of Kuebler, P and Kuebler, J.A (1978) FLC ¶90-434 (“Kuebler”) and Line & Line (1996) 21 FamLR 156 (“Line & Line”).

11. In Kuebler, Asche SJ identified the following relevant considerations, noting that the considerations were not exhaustive :

    a)The length of the proposed stay outside of the jurisdiction;

    b)The bona fides of the application;

    c)The effect on the child of any deprivation of access

    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 based its assessment of the parties that a promise of a return to the jurisdiction would be honoured.

12. In Line & Line, the Full Court (Murray, Lindenmayer and Kay JJ) held that when exercising discretion as to the fixing of an appropriate level of security for a child’s return, the trial judge should have regard to the following matters:

    a)The purpose of security is two-fold:

    i)To provide a sufficient sum to realistically entice the person removing the child from Australia to return; and

    ii)To provide a sum to adequately provision the party left in Australia to take action and proceedings in Australia and overseas to obtain the return of the child if required;

    b)The degree of risk that the departing parent will choose not to return.

    c)Whether the country to which the parent will travel with the child is a signatory to the Convention on the Civil Aspects of International Child Abduction (The Hague Convention); and

    d)The financial circumstances of each of the parties and the relative hardship imposed on the departing parent by fixing security at a particular level as compared with the hardship to the non-departing parent if security were fixed at a lower level. Hardship to the child flowing from these factors will also be relevant.

The Evidence

1. At the interim hearing, the Father relied on the following material:

   a)Amended Initiating Application, filed 3 April 2019;

   b)His affidavit sworn 11 April 2019 and filed 12 April 2019.

   c)Acknowledgement of receipt of application for Australian citizenship issued by the Department of Home Affairs (Exhibit A)

   d)Text message (undated) between the Mother and the Father (Exhibit B)

   e)Text message communication between the Father and the Mother of 3 September 2018 (Exhibit D).

2. The Mother relied on the following material:

   a)Amended response filed 12 April 2019

   b)Her affidavit sworn 18 March 2019 and filed 25 March 2019;

   c)Her affidavit sworn and filed 12 April 2019

   d)Extract from application for Australian citizenship made by the Father detailing child not applying for citizenship (Exhibit C).

The Father’s Evidence

Care arrangements for X, including proposal for X to remain in Country A

1. The Father gives evidence, and it is not controversial, that he has been involved in X’s life and that in more recent times, X has been in the Father’s primary care since at least 4 February 2019, if not a little earlier.

2. There is no doubt that in September 2018, the Father thought that X’s best interests would be served by X remaining in Country A – at least until he attains school age – where he would be cared for by the extended paternal family.

3. The Father does not give evidence as to when or how he first formed that view. It appears, however, that it was in his mind before he departed. The Father tendered a text message exchange between him and the Mother which occurred on 3 September 2018 which included the following:

   Father: To be honest I wanted your permission to leave him there, even if it’s for a trial as in worst case dad can bring him back even week after me coming if it didn’t work etc. But I felt you wasn’t (sic) on board. And I don’t want, I can not and I shouldn’t do any decision in regards to X where we both are not 100% agree. (sic)[1]

   [1] Exhibit D.

4. There is no evidence of the Mother’s reply – if any – to that message.

5. He departed for Country A with X on … 2018.

6. On … 2018, whilst still in Country A, he emailed the Mother[2] seeking her consent to leave X in Country A with the paternal family until X was of “school going” age. In that email, he outlined from his perspective, the attachment of X to his extended paternal family and the developmental gains he had made whilst in their care, the benefits to X in remaining in Country A given the parents’ various commitments, the preparedness of his own father to arrange education for X and the ability of either party to seek X’s return to Australia. The content of the email is not controversial and each party included it in their affidavit material.

   [2] Father, 11/04/19, Ann A; Mother, 14/03/19, Ann F

7. Absent consent from the Mother, the Father returned to Australia with X on … 2018. He gives evidence that on his return, he attempted to deliver X to the Mother, however, the Mother refused to open the door to him and refused to resume care of X. The Father apparently kept X in his care until 29 September 2018 on which date there was a dispute between the parents about X’s passport and the return of a vehicle that the Father had purchased for Ms E. The Father contends that during the course of that dispute the Mother assaulted him whilst he was holding X.

8. The Father apparently retained X in his care until 18 October 2018 when he arranged for Mr B to return X to the Mother’s care due to illness. At or around this time, the Father informed the Mother he wished to travel to Country A in January – March 2019 and asked that either she care for X while he was away, or allow X to travel with him.

9. The Father gives evidence that the Mother then refused to allow him to see or speak to X – despite numerous requests made by him – until 22 November 2018.

10. The parents attended mediation on 5 December 2018, and agreement was reached that – amongst other things – the Mother would care for X during the Father’s travel in January – March 2019 and that he would pay to her the sum of $1000.

11. He gives evidence that on 14 December 2018, he resumed full time care of X and that – in accordance with a request made by the Mother - X did not spend time with or communicate with the Mother until the Father departed for Country A on 4 January 2019.

12. The Father gives evidence that the agreements reached at mediation fell through and that the Mother told him she was not in a position to care for X during the Father’s planned travel in January – March 2019, and that she would not consent for X travelling with the Father. At that time, the Mother retained X’s passport and would not release it to the Father.

13. The Father commenced proceedings on 24 December 2018 and the parents were able to reinstate the agreements reached at the 5 December 2018 mediation including – apparently – the agreement that the Father would meet the cost of babysitting fees. On 4 January 2019, X entered the Mother’s care and the Father departed for Country A.

14. Whilst overseas, the Father received messages from Ms E (the Mother’s adult daughter) in relation to expenses related to babysitting. The Father does not give evidence as to whether he in fact paid the money agreed between the parties at mediation, but he does give evidence that, at that time, he was meeting all child support obligations, paying for X’s day care fees and paying into an account that the Mother used to buy clothing and other supplies for X.

15. The Father contends that on 1 February 2019, he received the following text message from Ms E (who was providing babysitting for X):

    For Mr B letting you know that I will be dropping X to your place this afternoon as I have not been paid for looking after him these last 2 weeks and I cannot look after him without being paid. Ms E.

16. On 4 February 2019, the Father then learned that the Mother dropped X to Mr B to be cared for by him, rendering Mr B unable to attend work or university. The Father gives evidence he acted immediately to change his return flights, and that he was not able to return to Australia until 19 February 2019. At that time, he resumed care of X and has had care of him since that time.

Residence and citizenship issues

1. The Father gives evidence that he moved to Australia on … 2009. He has lived in Australia since then and has secured permanent residence. Although he is silent on the date on which he was granted permanent residence, the Mother gives evidence that it occurred on … 2016.

1. The Father has now made an application for Australian citizenship. He first made that application in or around late 2017. For reasons that are not explained by him, he was required to submit a second application in October 2018 and apparently, that application is now underway.[3]

   [3] Father, 11/04/19: [8] & Exhibit A.

2. In the course of completing his application for Australian citizenship, he was required to identify any children he has who are not applying for citizenship. In response to the questions in the application form, he has identified that X holds citizenship of Australia and holds permanent residency in Country A.

Purpose of Father’s travel to Country A

1. The Father, having been born in Country A, has returned regularly to maintain contact with family travelling there, on average, once each year. In January 2019, the purpose of his travel was, apparently, fourfold:

   a)To visit with family and in particular his Mother, aged 73 years who was at the time unwell and due to undergo an angiogram on … 2019;

   b)To be married to his (then) fiancé Ms C on … 2019;

   c)To travel to City H; and

   d)To attend his cousin’s wedding.

2. The Father married Ms C on … 2019. She currently remains in Country A. She is currently required to remain in Country A until at least mid-2020 for reasons related to a scholarship that was awarded to her, discussed further below.

3. The Father gives evidence that the purpose of his upcoming trip to Country A in May 2019 is to travel with X to spend time with the paternal family as it will be Eid-Ui-Fitr, a Muslim religious celebration.

4. In the course of submissions, the Father’s solicitor informed the Court that that the purpose of travel also included a visit to his mother, who remains ill, although there is no evidence of the current state of her health - whether it has improved, worsened or remained the same since the January 2019 trip. Additionally, his solicitor submitted that part of the reason for travel was that he cut short his January 2019 trip to return to care for X, and would like to – in effect – finish off his trip.

5. The Father has annexed to his affidavit a travel itinerary indicating return flights for himself and X, although he gives evidence that he has not yet paid for the trip.

Father’s connections to Australia and to Country A

1. As noted earlier, the Father has lived in Australia since 2009. He has regularly returned to Country A and estimates he has returned at least once per year since arriving in Australia[4].

   [4] Father, 11/04/19: [69].

2. The Father currently resides in rental accommodation with his cousin Mr B. He does not own any property in Australia, although he gives evidence he is currently looking to purchase property.  There is no evidence of his financial capacity to do so, nor whether he has, in fact, commenced the process of looking for a property to purchase.

3. The Father is currently the Director of Company D. The company has been operating since … 2014. He currently employs over 15 full time workers and contractors, including the Mother’s adult son Mr D. He gives evidence that he recently employed more staff to assist him with his various business duties which has allowed him more time to care for X on a primary basis.

4. It appears that the Father has very little family in Australia and in fact, has only one cousin here – Mr B, with whom he lives. He gives no evidence of any of his friendships in Australia or of any significant social or community based connections.

5. The Father gives evidence that he has significant extended family in Country A including X’s grandfather, grandmothers, aunties and an uncle. On their previous trips, he and X have stayed at his parents’ home in Country A.

6. The Father’s new wife, Ms C also lives in Country A. Ms C studied for her Qualifications in Australia from 2014 – 2018. She was awarded a scholarship to undertake that study and it is a condition of the scholarship that she remain in Country A for 2 years at the conclusion of the scholarship. There is no evidence of the date on which the scholarship ended, although the Father’s solicitor submitted, on instruction, that that occurred in around … 2018. It appears, therefore, that Ms C is required to be in Country A until at least mid-2020.

7. On … 2018, the University invited Ms C to Studies commencing … 2018 and concluding on … 2021. The appointment becomes effective upon acceptance of the offer. There is no evidence as to whether the offer has, or has not, been accepted by Ms C.  On its face, the letter indicates that Ms C does not need to be in Australia on a permanent position to accept and fulfil the position.

8. The Father and Ms C married in Country A on … 2019. The Father gives evidence that they have discussed her moving to Australia to live together, and that Ms C has commenced the immigration process by the submission of an expression of interest to the Australian Government Department of Home Affairs on 28 February 2019.[5]

The Father’s financial circumstances

[5] Father 11/04/18: [80] * Ann N.

1. There is no evidence before the Court of the Father’s current income, his savings or his debt. Nor is there any evidence as to the current financial state of his business.

2. The Father’s application proposes that in the event he wishes to travel with X, he is to lodge with his solicitor a security bond of $30,000 not less than 21 days prior to the intended departure date.

3. There is no evidence before the Court of the Father’s capacity to put up the security bond he proposes.

4. On inquiry from the Court, his solicitor submitted that the $30,000 would be sourced as follows:

   a)$10,000 from savings;

   b)$10,000 to be provided by his own father overseas; and

   c)$10,000 to be borrowed against the business.

The Mother’s evidence

Care arrangements for X, including proposal for X to remain in Country A

1. The Mother gives evidence that following separation, X remained in her care. The Father would spend time with X mostly at her home or she would take X to the Father’s home. She gives evidence that in late 2016 – early 2017 X started to spend overnight time with the Father.

2. In early 2017, she was financially struggling and looking for work. Apparently an agreement was reached between herself, the Father and the Paternal Grandfather (who was visiting Australia at that time) that X would be taken out of day-care, that the Mother would care for X at home and would continue to do paperwork for the Father’s company and the Father would pay her $1000 gross per week. The agreement included an arrangement whereby when the Mother was required to work in her part-time job on weekends that the Father and Paternal Grandfather would care for X.

3. The Mother does not give evidence as to whether this agreement was implemented, however, she does give evidence that in December 2017, she enrolled X in E Day Care day-care for 5 days each week so she could work.

4. X’s care arrangements thereafter are not clear on the Mother’s evidence.

5. What is clear on her evidence, is that she gave her consent for X to travel to Country A with the Father in … 2017, … 2018 and in … 2018.

6. Apparently, when X returned from Country A in … 2017, he returned to the Mother’s full time care.

7. There is no issue that the Mother gave her consent for X to travel to Country A for the … 2018 trip and the Father and X departed for Country A on … 2018.

8. She gives evidence that on 19 September 2018, she and the Father were communicating through the application WhatsApp. She annexes a copy of the messages sent between them[6] revealing the following exchange:

   [6] Mother, 14/03/19: [40] & Ann E.

   …

   Father: What you want to do about X

   Mother: You tell me

   Father: I can’t tell this

   Mother: Well you need to

   Father: I told you while we were there

   Mother: For X to stay in Country A?

   Father: And asked u to have in written if u allowing him in Country A

   Mother: I have given my permission and I don’t know why you need it in writing

   Father: Because we will be back on 22 and I will drop him on way home

   Mother: Isn’t he staying there?

   Father: How can I leave him here when we both haven’t agreed and written. I been honest with u all the way through because without agreement it’s unfair on me. Because what if u say I left him without your permission. I am not asking for something big contract etc and I want to write in it that I am bounded to bring him back permanently whenever you ask him to be back.

9. The Mother further gives evidence that during the … 2018 trip, the Father messaged her to the following effect[7]:

   Father: I can’t force you to do anything. All decisions are your own. I will be back on Sunday …. After this if you don’t want him than (sic) I will keep him and plan things accordingly as I been requesting you to write on paper, including all the times you would like to see him, also for how long you allow him to live overseas etc. You can block me I am no worried by that. I mean we will be back me and X.

   Mother: OK well I can’t have him and you do what you need to do. As me having him will mean I need to keep contact with you and I don’t want that. I’m sorry for my baby, but I can’t do anything else.

   [7] Mother, 14/03/19: [42] & Ann G.

10. It appears from these messages that the Mother had at least contemplated, at that time, giving her consent for X to remain in Country A.

11. As already discussed, however, it is clear that the Father returned X to Australia on or around … 2018.

12. Thereafter, on the Mother’s evidence, the parties appear to have engaged in text message communication about financial settlement or, as the Mother has described it, her “financial entitlements” or “compensation/entitlement for all the financial loss I bear by marrying him, helping him in his business, having a son with him and remaining unemployed for almost 3 years”.[8]

    [8] Mother, 14/03/19: [44].

13. The Mother gives evidence that on 12 October 2018, the Father collected X from McDonalds at Suburb J and that she was verbally attacked by the Father, she was belittled, abused, put down and was blamed for them being in the position they were in. She gives evidence that the Father demanded X’s passport and told her that he wants to take X away and leave him in Country A, that there was no discussion regarding entitlements and that he did not pay her anything.

14. The text message exchanges continued after this meeting. It appears from the Mother’s evidence that the exchanges involved discussion about the amount the Mother was entitled to and the amount the Father could afford to pay, the provision of X’s passport to the Father and at one point (14 October 2018) the Father foreshadowing contacting the NSW Department of Family and Community Services (referred to in the evidence as “DOCS”), although it appears no such contact was made by the Father.

15. On 16 October 2018, the Father informed her by text message that he needed to go overseas, and asked either for her to take X, or to give him X’s passport so X could travel with him.

16. The messaging backwards and forwards between them continued.

17. On 5 December 2018, the parties attended mediation. Her evidence was consistent with the Father’s evidence about the agreements reached for X’s care whilst the Father travelled in January – March 2019.

18. The Mother gives evidence that on 13 December 2018, she had an argument with the Father during which the Father made threats to her partner and to her family (although the terms or the nature of those threats is not in evidence). She gives evidence that she was fearful the Father would make good on his threats and so on 14 December 2018, she decided to cut as many ties with the Father as possible. She contacted the day-care and told them they will need to speak directly with the Father about X’s future requirements. She also sent the Father the following text[9]:

    After talking to you yesterday and you expressing your concerns about X’s welfare and the lengths that you have gone to invade my privacy, you need to have him with you full time. I will be requesting him every second weekend from Friday afternoon till Monday afternoon, half of the school holidays, my birthdays, Mother’s Day, Christmas Day, Easter Day, every second New Years and half of his birthday….

    [9] Mother, 14/03/18: [58] – [59] & Ann R.

19. The Mother gives evidence that on 31 December 2018, she and the Father met and agreed that X would remain in her care during the Father’s upcoming January – March 2019 trip to Country A; that in the future, X would live with the Father for 11 nights and with the Mother for 3 nights in each fortnight; that the Mother will need to hire a babysitter in order for her to meet her work commitments in during January – March 2019 trip the and that the cost of the babysitter would be met by the Father.[10]

    [10] Mother, 14/03/19: [96].

20. The Mother gives evidence that on 3 January 2019, the Father transferred the sum of $680 to her to pay the babysitter. She engaged her daughter Ms E to do the babysitting. She apparently understood this sum to cover one fortnight. She gives evidence she tried to communicate with the Father and advise him of her following fortnight’s shifts (to enable him to pay the babysitting fees), but that he did not engage with her on this issue.[11]

    [11] Mother, 14/03/19: [73] – [80].

21. Having not heard from the Father and being unable to pay for X’s care, the Mother decided to take X to Mr B, the Father’s cousin and relinquish care of him. This occurred on either 1 February 2019 or 4 February 2019.

22. She gives evidence that since leaving X with Mr B, she has found it difficult to spend time with X, and has made several attempts to organise time with him.

23. The Mother also gives evidence that X requires a tonsillectomy and adenoidectomy and that on 4 March 2019 Suburb L Hospital advised that X is currently on a waiting list with an approximate waiting time of 3 months.

The Competing Contentions

1. The parties’ respective positions can be summarised as follows.

2. The Father intends to travel to Country A in May – June 2019. He contends:

   a)The Court could not accept the Mother’s assurances that if X is to be in her care during the intended period of travel, she would be able to commit to his care.

   b)The only way of avoiding a repeat of the January 2019 situation where the Mother relinquished care of X, is to allow X to travel with him.

   c)He has travelled with X on 3 prior occasions, returning X to Australia each time, including after the … 2018 trip when it was clear he had hoped to leave X in Country A.

   d)He has ties to Australia being:

   i)His permanent residence and application for citizenship.

   ii)His intention to bring his new wife to Australia and the commencement of her application to come to Australia.

   iii)His business, Company D.

   e)He offers a security bond of $30,000 which is sufficient to entice him to return to the jurisdiction and would adequately provision the Mother to commence proceedings to seek X’s return if X does not return to the jurisdiction.

3. The Mother contends:

   a)The Father wants X to live in Country A and if X is allowed to travel, he will not be returned to Australia. Insofar as the Father has – through his lawyers – represented that he himself has no intention of relocating from Australia, those reassurances offer her no comfort as her concern is that X will not return, even if the Father does return.

   b)Country A is not a signatory to the Hague convention and if X does not return to Australia the Mother will need to travel to Country A, engage Country A lawyers and commence parenting proceedings in that jurisdiction. Apart from the practical and emotional difficulties she would face doing so, $30,000 is not an adequate sum to provision her to do so.

   c)She can guarantee that she will care for X whilst the Father is outside of Australia and the January 2019 situation will not be repeated.

   d)She otherwise seeks orders that X’s name be placed on the Airport Watch List, that she and her family care for X during the period of the Father’s proposed travel and that he otherwise spend alternate weekends with her.

Applying the Law to the Facts

Is it in X’s best interest to travel?

1. As this is an application for orders facilitating travel, and as no party seeks orders as to parental responsibility, on an interim basis, the s 60CC factors are examined in relation to that issue, rather than to broader parenting issues.

Meaningful relationship: s 60CC(2)(a)

1. It is difficult to ascertain the nature of X’s relationship with each of his parents. The evidence on the interim application reveals inconsistency in his care arrangements over at least the past 12 months, with X apparently moving between the care of his Mother and his Father subject to their respective work and travel commitments, and depending on the state of the relationship between them.

Need to protect X from physical or psychological harm from being exposed or subjected to abuse, neglect or family violence: s 60CC(2)(b)

1. Each parent gives evidence that the other has engaged in family violence against the other. These competing allegations have not, however, stopped either parent from leaving X in the unsupervised care of the other at various points in time.

Nature of X’s relationships with each parent and any other person including grandparents or other relatives: s 60CC(3)(b)

1. As noted above, it is difficult to ascertain the nature of X’s relationship with each parent.

2. The Father gives evidence that X has a close relationship with his paternal extended family in Country A. In the 22 September 2018 email, the Father writes that bringing X back to Australia would be hard as he is attached to the Father’s younger sister (X’s aunt) to the point where he doesn’t want her to go to school and always wants to be with her.

The likely effect of any changes in X’s circumstance including the likely effect of separation from either parent or any other child or person with whom he has been living: s 60CC(3)(d)

1. It would appear that X has been in the Father’s primary care since at least February 2019 if not somewhat earlier.

2. If X travels to Country A, he will be separated from the Mother for about one month. The Mother expresses concern that the proposed travel will mean that X is not provided with a stable home environment and that separation from herself and his siblings will have a negative psychological impact on him. The evidence available indicates that whilst in Australia, X has not had a stable home environment for some time, moving in between the Mother and Father’s care depending on their respective circumstances. There is no available evidence about the nature of X’s relationships with his siblings Mr D, Ms E or Mr B, whether any or all of the siblings live in the same household as X, and the time they spend together in any event.

3. If X is not permitted to travel, and if the Father chooses to travel, then X will be separated from the parent who has been his primary caregiver for at least 3 months. But he will be in the care of his Mother subject to whatever care arrangements she makes for him whilst she attends to her work.

4. If X is not permitted to travel, the Father may choose not to travel, in which case, there is no evidence that he will be separated from any person beyond the current uncertainties of his living arrangements and the variable time he seems to spend with the parent with whom he does not live.

The capacity of each parent to provide for X’s needs: s 60CC(3)(f)

1. The Father contends that if X is not allowed to travel, the Mother does not have the capacity to care for him given her work commitments. He gives evidence that as at January 2019, he himself had no suitable family or friends available to care for X during the January 2019 trip and he gives no evidence that this has changed. I must assume, therefore, that this remains the case.

2. The Mother seeks to care for X during the upcoming period of travel and in her affidavit, gives evidence that she will “guarantee” that she will provide care for X whilst the Father travels.

1. There is no dispute by the Mother that she did, in fact, relinquish care of X to the Father’s cousin in February 2019. When pressed about this during the interim hearing, she submitted that it was, in part, a financial decision in that her work commitments meant she had to arrange alternative care for X and could not afford to do so without the Father funding it. She also submitted, however, that it was a matter of principle as the Father had not honoured the agreement he made.

2. There is no evidence of the Mother’s work commitments for the proposed period of travel. There is no evidence of when she will, or will not, be available to care for X and she does not give evidence of what alternative arrangements she will make for his care – whether it be day-care, babysitting, care by another family member or some other arrangement. However, this is a situation that many families deal with on a day to day basis. She does not seek financial provision be made for X’s care throughout the period of the Father’s proposed travel.

3. Looking at the February 2019 situation through X’s eyes (who was then aged 3 years and 10 months), throughout 2018 he had moved between his Mother and Father’s households. On 4 January 2019 he went into his Mother’s care and when she was at work, his sister Ms E was babysitting him. On 1 or 4 February 2019, he was then dropped to his Father’s home, but his Father was not there. He was left in the care of Mr B. The evidence does not indicate with any precision how much care Mr B provided to X on a day to day basis nor whether X has a relationship with him that is comfortable, nurturing or one in which he could seek comfort if upset. Whilst there is no evidence from either parent of the impact on X of the February 2019 relinquishment of care by the Mother, a repeat of such a situation is not desirable for a 4 year old child.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the parents

1. X is a child with Australian and Country A heritage.  His extended paternal family live in Country A and would be a valuable source of culture to him.

2. The evidence does not indicate whether X is being raised as a Muslim, although the Father apparently identifies as Muslim and wishes to share the upcoming Eid celebration with X and the extended family.

3. There is no evidence of any particular benefit to X of the proposed travel other than exposure to extended family and to his culture. It is not clear on the evidence whether X is at a developmental stage where he is likely to appreciate such matters.

The Kuebler and Line & Line considerations

Length of stay

1. The proposed period of travel is 18 May 2019 – 15 June 2019, a period of 4 weeks.

The bona fides of the application

1. The Father gives evidence that the intended purpose of travel is to visit family to celebrate Eid-Ui-Fitr. Whilst it was suggested in the course of submissions that the purpose of travel also included to visit with X’s paternal grandmother who was ill in January 2019, this was not a motivation included in the Father’s affidavit, and there is no evidence available about the current state of her health.

2. The Father has regularly travelled to Country A to visit family since his arrival in Australia. His evidence is that he has, on average, returned once each year since 2009. That the Father is travelling to Country A is not an unusual occurrence. What is, however, unusual, is that it will be his third trip in an 8 month period and thus represents more frequent travel that the once per year average.

3. It is clear that in September 2018, the Father had formed the view that it was desirable for X to remain in Country A – at least until he attained school age – to be cared for by the extended paternal family. The evidence does not reveal when he formed this view, however, it was certainly in his mind prior to his departure for the September 2018 trip.

4. There is nothing in the Father’s evidence to indicate that he has changed his view in this regard.  In his affidavit, he strongly rejects any suggestion that he is seeking to permanently relocate from Australia to Country A or another country, or that he would not return to Australia with X. But he gives no evidence as to whether he has changed his view that X would be best cared for by the paternal family in Country A.

5. In his email of 22 September 2018, the Father outlines the benefits to X of remaining in Country A. He writes that each of the parents’ work commitments mean they haven’t been able to give him a class of care which he gets in Country A. In his affidavit, he gives evidence that he has recently employed more people which has freed him up to attend to X’s primary care, but, there is no evidence of his current work schedule and whether this additional work support has resolved the issue of his work commitments outlined in that email.

6. The Father’s proposal that X remain in Country A does not appear to have been solely motivated by the parents work commitments. In the 22 September 2018 email, it appears that the Father’s view also based his view on X’s attachment to the extended paternal family, the improved quality of X’s life in their care, and the opportunities they could provide X which – apparently – he and the Mother could not provide in Australia.

7. Having regard to the content of the Father’s 22 September 2018 email in which he outlines to the Mother all of the positive benefits to X if he were to remain in Country A, and knowing that the Mother opposes X’s travel, it is reasonable to expect that the Father would have traversed his current view about X remaining in Country A in his affidavit material. Other than a robust denial that he does not intend to relocate to Country A or to return to Australia without X, he is silent on the issue.

8. The Father gives evidence – and it is not disputed by the Mother – that on each of the 3 occasions on which X has travelled, he has always returned to Australia. Most recently, he returned to Australia with X even though he wanted him to remain in Country A, because the Mother did not give her consent to X remaining there.

The effect on the child of any deprivation of access

1. As discussed earlier in these reasons, it is difficult to get any sense of the relationship between X and each of his parents and it is not possible to determine how he would experience a separation from his Mother and his siblings.

2. The actions of the Mother in abruptly relinquishing care of X to Mr B on 1 or 4 February 2019 would indicate that either she was not concerned that being separated from her would have a deleterious effect on him, or in the alternative, that she considered that any distress he would experience was outweighed by her financial circumstances and the principle she wished to assert.

Any threats to the welfare of the child by the circumstances of the proposed environment

1. There was no evidence put forward by the Father or the Mother about any current travel advisory issued by the Australian Government in relation to travel in Country A.

2. The Father gives evidence that during the proposed travel, he will be staying in Country A in his own parents’ home.

The degree of satisfaction in which the Court based its assessment of the parties that a promise of return to the jurisdiction will be honoured.

1. On the one hand, the Father has travelled with X on 3 occasions, each time seeking the Mother’s consent prior to travelling, and each time returning X to Australia.

2. It is significant that during the September 2018 trip, the Father raised the idea with the Mother of leaving X in Country A both prior to departure and during the trip. As discussed above, the evidence indicates that the Mother appears to have given her consent to that proposal in text messages exchange between them. For reasons that are not explained, the Father would not rely on that consent without a document to that effect being signed by each party. I draw no inference or conclusion from that fact, but merely observe it. It appears that the Mother withdrew that consent at some point, although precisely when that was is unclear.

3. In any event, without a signed document and in circumstances where the Father was not confident that both he and the mother were in complete agreement, he returned to Australia with X.

4. This is indicative that the Father – at least as at September 2018 – was not prepared to leave X in Country A without the Mother’s written agreement. When considering whether the Father would return X to Australia if X is permitted to travel, this evidence falls in the Father’s favour.

5. This exchange between the parents during the September 2018 trip is not, however, the only matter the Court takes into account in the risk assessment process.

6. As discussed earlier in these reasons, the Father maintains a close and continuing connection with Country A. It appears that almost all of his family are there and that he considers that X is attached to them.

7. Insofar as the Father expressed in his email of 22 September 2018 the benefits he considered would accrue to X there is no evidence that he has, since then, reached any different conclusion.

8. There is also the reality that the Father’s circumstances are different at the time of this application than they were during at the time of the September 2018 trip. He is now married with a new wife. It is clear he intends to be with her and they are making plans to live together in Australia, however she cannot, apparently relocate outside of Country A until mid-2020. He is also now engaged in litigation against the Mother in relation to future care arrangements for X in circumstances where the Mother appears to have changed her mind about X remaining in Country A.

9. In considering the risks issues in this case, it is clear that the Father has made his life in Australia for the past 9½ years, that he secured permanent residence, and that he has commenced the process of seeking citizenship. Against that, however, is the evidence that the Father has only one cousin here, he owns no property in Australia (and whilst he gives evidence he is looking to buy property, for reasons that are discussed further below, there is a real question as to whether he is, realistically, in any financial position to do so in the foreseeable future). There is no evidence from the Father of any association with social, sporting or other community groups. He gives evidence that he is the director of Company D, but no evidence of his day to day duties and whether he is required to be in Australia to operate the business.

10. In terms of X’s connection to Australia the Father gives evidence that since February 2019 when he returned from his trip in Country A, X has attended E Day Care day-care on 2 – 3 days per week, but due to the distance of that day-care centre from the Father’s house, he has chosen to look after X on some days as he has been able to organise his work accordingly. He has recently enrolled X into a new day-care facility at F Day Care in Suburb K. There is no evidence as to how many days X attends, how long he has been enrolled there nor of any friendships X has with other children who attend the centre, or indeed with any other children at all. The Father gives evidence that X attends swimming classes on Wednesday and Sundays and that he intends to enrol X in sports for the upcoming season.

11. There is no evidence from the Father that he considers Australia to be X’s home.

12. Further, the evidence indicates that the Father has identified that X holds permanent residence in Country A and it can only, therefore, be assumed that it would not be difficult for X to remain in Country A.

13. Having regard to the above matters, I find – on an interim basis – that there is a risk that if X travels to Country A with the Father, X will not return to Australia.

Is the risk unacceptable?

1. In his Amended Initiating Application, the Father proposes that he provide a $30,000 security bond to be forfeited to the Mother in the event that X does not return to Australia. As discussed above, in Line and Line, the full Court set out the matters to be considered when determining the appropriate level of security to be given.

The two-fold purpose

1. It is difficult to assess whether the sum of $30,000 is sufficient to entice the Father’s return to Australia when there is no evidence of the Father’s current financial position. How is the Court to assess the value of $30,000 to a person without evidence of their current income, assets and liabilities?

2. On inquiry from the Court, the Father’s solicitor submitted that the security bond would be made up as follows:

   a)$10,000 to be paid from the Father’s savings;

   b)$10,000 to be paid by the Father’s father; and

   c)$10,000 to be borrowed from the business.

3. The manner in which the Father would provide the security bond indicates that he would, in reality, only be forfeiting $10,000 of his own money.

4. There is no dispute between the parties that Country A is not a signatory to the Hague Convention. Accordingly, if X travels outside of Australia to Country A and does not return, the Mother does not have the protections afforded to her under the convention and would need to go to Country A to seek X’s return.

5. There is no evidence before the Court of the law in Country A in relation to parenting matters. There is no doubt, however, that if X does not return, the Mother will require financial resources to arrange legal representation in Country A and potentially to travel to and from Country A to engage in any legal proceedings. There is no doubt that a person who is not a Country A national nor a resident of Country A will encounter greater difficulty accessing the legal system in Country A than someone who is present in Country A, fluent in the language and who has available to them family support and a familiarity with the culture.

The degree of risk that the departing parent will not return

1. As noted earlier in these reasons, the Mother’s concern – and the real risk in this case – is not so much that the Father will not return, but that X will be left in Country A.

2. I assess this risk as high at the present time, having regard to:

   a)The Father’s view in September 2018 that it was in X’s best interests to remain in Country A and the lack of evidence that there has been any change in his view

   b)The fact that X apparently holds permanent residence of Country A.

   c)The apparent willingness and availability of extended paternal family to care for X.

   d)X’s apparent attachment to the extended paternal family.

Whether the country to which the parent will travel with the child is a signatory to the Hague Convention

1. As noted above, it is not controversial that Country A is not a signatory to the Hague Convention.

The financial circumstances of each of the parents and the relative hardship imposed on the departing parent by fixing security at a particular level as compared with the hardship to the non-departing parent if security were fixed at a lower level.

1. Again, there is no evidence from the Father of his current financial position. He gives evidence that he has met his child support obligations.

2. There is little evidence from the Mother in relation to her financial position, other than she is unable to afford alternative care for X in the event that she is to care for X whilst the Father travels.

Conclusion

1. I am satisfied that there is benefit to X in travelling to Country A. As the child of a father born in Country A, X has Country A heritage and the opportunity to experience this in Country A, with his paternal family would be beneficial to him. He would also have the opportunity of renewing his connection with his extended paternal family.

2. The extent of these benefits must, however, be considered in light of the fact that he is a 4 year old boy. His capacity to experience his culture is likely to be more limited at this age than it would be if he were older and better able to understand and appreciate the opportunity that travel affords him. It is clear that his grandfather has travelled to Australia to see him and there is no evidence of the attempts the Father has made, if any, to maintain X’s connections to extended paternal family from a distance through technology such as Skype or phone calls.

3. I am also, however, satisfied that there is a risk that if X travels to Country A that he will not return. This is because:

   a)In September 2018, it was the Father’s view that X’s best interests would be served by him remaining in Country A with extended paternal family. There is no evidence that the Father has changed his view about this.

   b)The email sent by the Father to the Mother of 22 September 2018 indicates that from the Father’s perspective, the paternal family were at that time ready, willing and able to take on the care of X. There is no evidence to suggest that that has changed.

   c)X apparently has permanent residency in Country A meaning there is no apparent legal impediment to his remaining in that country.

   d)The Father has a new wife in Country A who is unable to relocate outside of Country A until mid-2020.

4. I am not satisfied that the risk can be adequately ameliorated by the Father’s proposal that he provide a security bond in the sum of $30,000 for the following reasons:

   a)It is clear that the parties have been in discussion about the Father paying to the Mother an amount in the vicinity of $30,000 by way of financial settlement following the breakdown in their relationship.

   b)The $30,000 is to be made up of $10,000 of the Father’s own money. It will otherwise be sourced from his own Father (who is, apparently, supportive of enabling X to remain in Country A) and from borrowings against his business.

   c)There is no evidence of the Father’s current financial position and it is not possible to ascertain the value of the proposed sum to the Father. In the absence of that evidence, it is not possible to ascertain whether the sum proposed is sufficient to entice him to return.

5. If X travels to Country A and in the event that the risk apprehended by the Mother is realised – that is, that X does not return from Country A. X will be separated from his Mother. If she wishes to seek his return to Australia she will be doing so in a country that is not currently a signatory to the Hague Convention.

6. Insofar as the Father contends that X will be at risk if he is not allowed to travel, I note that the purpose of the Father’s upcoming trip to Country A is to see family and to celebrate Eid-Ui-Fitr. In contrast to his personal and family circumstances in January 2019 when his mother was ill, he was attending a family member’s wedding and he was himself getting married, there is no obvious or compelling reason for travel other than to see family and celebrate Eid-Ui-Fitr. The risks apprehended by the Father if X is not allowed to travel, can be avoided if the Father chooses not to travel at this time.

7. In the event that the Father chooses to go ahead with his trip, the only apparent option for X is to go into the care of the Mother for the duration of his trip. Whilst the situation that occurred earlier this year – when the Mother abruptly relinquished care of X to Mr B was likely upsetting for X, the Mother gives evidence that she will provide care to X this time around. She does not seek – and nor will the Court make – any orders for the Father to pay fees to the Mother for alternative care arrangements to be made. Presumably then, the Mother will – like many parents in Australia do – make the appropriate arrangements with her work or her family or with an alternative care provider, to ensure that X is well cared for whilst the Father is overseas.

8. On balance, I am of the view that the risks associated with the travel outweigh the benefit of the travel to X.

9. Accordingly, the Father’s application is dismissed.

10. Insofar as the Mother has sought orders for regular time with X, being alternate weekends from Friday at the conclusion of daycare until Monday at the commencement of daycare, neither party advanced significant evidence as to that particular issue. Given the urgency of the application for travel consideration that issue occupied the attention of the parties and of the Court. Noting that X has moved in between his parents’ households by agreement (or acquiescence of the parents) without the need for Court orders, consideration of the Mother’s time with X is deferred until the parties have attended upon a family consultant for the purposes of a child dispute conference.

I certify that the preceding one hundred and sixty-two (162) paragraphs are a true copy of the reasons for judgment of Judge M Neville

Date: 2 May 2019