Wing and Lor

[2011] FamCA 980

FAMILY COURT OF AUSTRALIA

WING & LOR [2011] FamCA 980

FAMILY LAW – CHILDREN – application by the paternal grandmother seeking orders that the child be permitted to travel overseas to City A for a holiday – where the father resides in City A – where the mother argues that there is a risk that the child will not be returned to Australia and will instead be taken to Country B – where Country B is not a signatory to the Hague Convention – where the mother will be exposed to grave danger if she returns to City A or Country B – best interests – where the risks for the child at this point in time significantly outweigh the benefit to the child in re-establishing his relationship with the father – application dismissed.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Ms Wing

RESPONDENT: Ms Lor

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

FILE NUMBER: ADC 1937 of 2009

DATE DELIVERED: 1 December 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE JUDGMENT OF: Burr J

HEARING DATE: 1 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Richards
SOLICITOR FOR THE APPLICANT:	Clelands

COUNSEL FOR THE RESPONDENT:	Mrs Lindsay
SOLICITOR FOR THE RESPONDENT:	Adelaide Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Du Barry
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Legal Services Commission

Orders

1. That the paternal grandmother’s application that the child N born … 2002 be permitted to travel overseas with the paternal grandmother during the month of January 2012 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1937  of 2009

Ms Wing

Applicant

And

Ms Lor

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me an Application in a Case filed on 4 November 2011 by the mother in these proceedings and a Response to an Application in a Case filed by the paternal grandmother on 24 November 2011.  The issues between the parties relate, as they have done historically for 2 ½ years now, to the child N (“the child”) who was born in 2002 and who is hence 9 years of age.

2. To the credit of the parties they have resolved all of the issues between them at the time of filing which relate to the time that the child is to spend with each of the mother and the paternal grandmother.  Those agreements will be reflected in Minutes of Order which I will make once the Independent Children’s Lawyer has had the opportunity to complete the draft of same.  The effect of that agreement between the parties is that the child’s time will be divided between his grandmother and the mother respectively as to four days and nights and three days and nights.  That is an increase in the time that the child had previously spent with his mother and more significantly and importantly, frees up the child’s week somewhat from the many exchanges that had to be undertaken.  That agreement between the parties was important too because the child is moving forward in his education and it must be a very disruptive process for him as is exhibited by the current agreement and the orders in these proceedings.  There was also ready agreement between the parties as to how they will share school holidays, Christmas Day, Chinese New Year and Easter.

3. The subpoena argument also listed for today I have been asked by agreement of all parties to adjourn to another date pending some further more detailed information as to the mother’s residence status in Australia.  Thus the remaining issue for my determination is that raised by the paternal grandmother in her aforesaid Response in which she seeks an order that she be permitted to travel to City A with the child in January 2012.  I have been provided with a draft itinerary which would indicate that the child and his grandmother, if given my permission, would depart Australian shores on 1 January 2012 and return on 15 January 2012.

4. There are multiple considerations that arise for the Court’s consideration in this Application because of the somewhat unusual and chequered history of the parties and, by the parties, I include the child’s father who is a respondent to these proceedings but has taken no active part in the proceedings.   The reason why he has taken no active part in the proceedings is perfectly understandable in that he has been incarcerated in prison in Country B for some two years or more.  The confused residence and visa status of the mother and the father gives rise also to a number of the considerations that have been drawn to my attention in this matter.

5. The mother opposes the application and raises a series of concerns that are supported by the Independent Children’s Lawyer.  It is not possible for me, in the vast history of the parties which covers some 2 ½ years, to explore in great detail all of those particular issues and provide the particularity in these ex tempore reasons and so I will do my best to summarise those concerns of the mother.

6. The principal concern for the mother is quite plain which is that she is concerned that if the child is permitted to travel to City A with the grandmother, that she will never see him again.  Her fears in that regard can be summarized by the fact that the father's status in Country B, City A and Australia is somewhat uncertain but the summary of the position appears to be that he may well be permitted to travel between Country B and City A with ease and in those circumstances, the mother fears that the father, with or without the cooperation of the grandmother, would remove the child from City A and take him to Country B.

7. Mrs Lindsay, for the grandmother, has directed me to the information which supports the fact that City A and City C are signatories to the Hague Convention on the Civil Aspects of Child Abduction but they are the only regions of Country B which are indeed signatories and abide the Convention.  Thus if the father removed the child to Country B from City A, there would be no prospect of him being returned to Australia under the Hague Convention.  Whether or not he would be otherwise returned is a matter about which I cannot speculate.  However, the fact that the Convention outreach would not attach itself to Country B is a matter of concern to me and clearly a matter of concern to the mother and the Independent Children’s Lawyer. 

8. The concerns are compounded by the unknown standing of the child in Country B.  Each of the parties were complicit in some fraudulent activities in relation to the registration of his birth and his birth name, which conveyed itself also to the passport which has been issued in the child’s name.  The consequences for the child in Country B of such activity and such action which led to that passport being issued are also an unknown and concerning factor.

9. As I said, the father has not participated in these proceedings in any meaningful way and that has continued through to the present time when he has not offered any evidence which would support the application of his mother to bring the child to City A so that he can see him and other extended members of Child’s family.  He has not provided anything by way of assurance to the mother or indeed to the Independent Children’s Lawyer or this Court.

10. To further emphasize the point I made earlier about the father’s status being unknown, as much as the information before the Court can be relied upon, it would appear that in 2009 the father’s visa was cancelled at the request of the Country B Government as a consequence of serious fraud which it was alleged that he was guilty of and which resulted in his imprisonment.  I raised with Counsel for the parties whether or not it was necessary for the child to travel to City A to see his father and whether or not an attempt at maintaining the relationship between the child and his father could be achieved by the father travelling to Australia.  The answer to that is “no” and thus, in the balancing exercise I must entertain, I acknowledge and accept that the only manner in which the child could maintain his relationship with his father is if he travelled with the grandmother to City A to see him. 

11. That arises not just because the father is unable travel to Australia to see him but because the mother cannot travel to City A or Country B with the child in order to enable the father to spend time with him.  The findings of the Refugee Tribunal, I accept, indicate that the mother would be exposed to grave danger if she returned to City A or indeed to Country B.  Indeed it is for those very reasons that it would appear possible that she will be granted residence status in Australia.  There are some remaining bits and pieces of information which are still to be secured from the Refugee Tribunal and from the mother’s immigration solicitor but I am informed from the bar table that all impediments to that status being granted to the mother appear likely to have been overcome.  However, the significance of mentioning those factors is that it supports the mother’s contention that she certainly could not risk going to City A or to Country B with the child.

12. Thus I am left with the balancing situation of, as the Act requires me to consider particularly pursuant to the two primary considerations under Section 60CC, the need to try and maintain a relationship between the child and his father and indeed the mother and the paternal grandmother as against the risk to the child of physical and psychological harm by being exposed to abuse, neglect or family violence. I can think of no greater psychological harm to which the child would be subjected, irrespective of whether there was any risk of physical harm, than being removed from the care and influence of his mother and being exposed to a regime which is entirely foreign to him. Thus in exercising that difficult balance, I am satisfied that it is appropriate to refuse the grandmother’s application as I fear that the risks for the child at this point in time significantly outweigh the benefit to him of re-establishing and maintaining a meaningful relationship with his father by travelling with the paternal grandmother to City A for a period of some two weeks.

13. Even if I am wrong about that and I would sincerely trust that the time will come when it is safe for the child to travel to City A to see his father, there is certainly only a very limited opportunity for the child and the father to establish anything by way of a meaningful relationship in the short period of two weeks.

14. It may well be appropriate that the father actually takes an active part in these proceedings now that he has been released from prison and actually puts matters before the Court that may be of reassurance to the Court.  Another obvious factor in my view would be that the father should promote the relationship first by means that are available to him in the nature of email communications or Skype communications and the like.

15. Thus, in my view, the paternal grandmother’s application is premature, if it is founded on the premise that it is appropriate to do so in order to re-introduce the child to his father.  I acknowledge that her application also was in order for the child to enjoy some time with his extended family members in City A.  I have not been provided with any information which would suggest that there is anything to prevent those family members from coming to Australia to see the child. 

16. I should, before departing these reasons, pay due regard to the arguments that Mrs Lindsay raised that would support the grandmother’s application and they particularly are founded on the history of the matter, indeed a long history in the matter, where the child did travel extensively at times with various of the parties to the proceedings but in particular, with the paternal grandmother.  Those periods traversed many years through 2003 to 2009.  On each and every one of those occasions there was never a problem with the grandmother returning the child as he should have been and it was on that basis that Mrs Lindsay argued, along with the other matters that she raised, that the Court could take comfort in the probability, or indeed certainty, of the paternal grandmother returning the child to Australia at the end of this two week holiday period.

17. In addition to that, the paternal grandmother offered significant security, particularly in relation to her property at Suburb D which I am advised has an equity of $1.3 million.  Thus I have had regard to those matters raised quite properly by Mrs Lindsay in support of the application but as Mr Richards said in response, and it was a matter supported by the Independent Children’s Lawyer, all of that travel occurred at a time when the relationship between the parties was entirely different as was their respective statuses in Country B, City A and Australia.

18. Thus in my view, those trips do not provide me with any comfort in being satisfied that the child would be returned to Australia and I therefore decline the grandmother’s application in that regard.

I certify that the preceding eighteen (18) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr delivered on 1 December 2011.

Associate: 

Date: