YILMAZ & YILMAZ
[2010] FMCAfam 791
•26 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| YILMAZ & YILMAZ | [2010] FMCAfam 791 |
| FAMILY LAW – Children – overseas travel by child – relevant considerations – applicability of cases decided before the Shared Parental Responsibility amendments. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA, 65DAB |
| Kuebler & Kuebler, (1978) Fam LN 4, (1978) FLC 90-434 Goode v Goode [2006] FamCA 1346, (2006) 36 Fam LR 422, (2006) FLC 93-296 |
| Applicant: | MS YILMAZ |
| Respondent: | MR YILMAZ |
| File Number: | PAC 3800 of 2009 |
| Judgment of: | Halligan FM |
| Hearing dates: | 11 June 2010 & 26 July 2010 |
| Date of Last Submission: | 26 July 2010 |
| Delivered at: | Parramatta |
| Delivered on: | 26 July 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Snelling |
| Solicitors for the Applicant: | Sayan & Associates |
| Counsel for the Respondent: | Mr Gersbach |
| Solicitors for the Respondent: | Matthews Folbigg |
ORDERS
By consent, orders are made in accordance with the Terms of Settlement marked Ex K, except subparas.7(i), (ii) and (iii) and para.11.
Notwithstanding these orders, and subject to subparas.7(iv), (v) and (vi) and paras.9 and 10 of Ex K, the mother may take the child out of Australia to travel to Turkey provided that the child shall not leave Australia prior to 10 September 2010 and the mother shall cause the child to return to Australia no later than 5 November 2010.
If the mother fails to return the child to Australia by 5 November 2010, the father has liberty to apply to the court ex parte for orders enabling the sale of the mother's car and home unit and application of the proceeds of sale to meet the father's legal costs of seeking the child’s return to Australia.
IT IS NOTED that publication of this judgment under the pseudonym Yilmaz & Yilmaz is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3800 of 2009
| MS YILMAZ |
Applicant
And
| MR YILMAZ |
Respondent
REASONS FOR JUDGMENT
Issues to clarify
Introduction
The mother of ten year old [X] wishes to travel with her to the parents’ country of birth, Turkey, for a holiday to visit her family members and culturally significant sites there. The father does not oppose the trip in principle, but objects to the amount of school the child would miss under the mother's proposals, and is concerned that the mother may not return the child to Australia. He therefore proposes that the duration or timing of the mother's proposed trip be changed, and he seeks that the mother provide security for her return, both in cash, by provision of her motor vehicle and charging her interest in her home unit to secure a payment of $15,000. The mother objects to the cash component of the security the father seeks, and to both the limitation on the duration of the trip and the timing of the trip proposed by the father.
Background
The father was born in Turkey [in] 1970 and is now aged 40. The mother was born in Turkey [in] 1979 and is 30. The parties married in Turkey before coming to Australia. The parties also married in Australia [in] 1998 because, the mother said, the Turkish marriage was not recognised in Australia as she was 17 at the time of the Turkish marriage. The parents finally separated in October 2003 and their Australian marriage was finally dissolved in February 2005.
[X], born in Australia [in] 2000, is the parties’ only child. She is an Australian citizen by birth. [X] is entitled to Turkish citizenship, the child does not currently have Turkish citizenship, and the mother does not know whether there are any conditions to the child gaining Turkish citizenship.
The mother and [X] visited Turkey for about eight weeks in early 2003, that is, prior to the parties’ final separation. The mother and the child have not had a holiday since this trip to Turkey due to financial constraints in the mother's household.
The mother became an Australian citizen on 17 March 2004. The mother retains her Turkish citizenship.
There have been no prior parenting orders or parenting plans in relation to the child.
Turkey is a convention country under the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention) (see Schedule 2, Family Law (Child Abduction Convention) Regulations 1986).
The evidence
[X] has primarily lived with the mother since the parties separated, except for a three month period in 2007 when she lived primarily with the father by agreement between the parents. [X] has regularly spent time with the father when the child has primarily lived with the mother, except for a short period in early 2006.
In early January 2006, the mother asked the father to agree to her and the child travelling to Turkey on 25 February 2006 for an indefinite period. He would not agree to the travel. After refusing to agree, the father rang a travel agent who told him the mother had booked one way tickets to Turkey.
On 16 January 2006 in a conversation between the parents, the mother told the father that if he would not agree to her request about overseas travel, he and his family would not see the child. Thereafter the mother would not let the father see the child until 11 February 2006. Thereafter, the father resumed spending regular time with the child as agree between the parents.
On 27 August 2007 the mother told the father she was going to Turkey for ten to twelve days and the child could stay with him, with which the father agreed. However, the mother did not subsequently go to Turkey.
In mid 2008 the mother bought a home unit for $220,000, all of which was borrowed. She “recently” moved out of the unit and into cheaper rented accommodation, renting out her own unit. The outgoings on the home unit exceed the income she receives in rent, but the mother believes that the value of the unit is appreciating. Based on advice from a real estate agent, the mother believes her unit is presently worth $275,000.
The mother instituted these proceedings on 14 August 2009 “seeking to apply for an Australian passport” for the child and “seeking to apply for travel” for the child. Her application did not specify the date, duration or destination of any overseas travel. The father did not file a response until 26 May 2010, when he sought parenting orders and specific orders in relation to the mother taking the child to Turkey. The parents have now reached agreement on all parenting issues other than the trip by the child to Turkey.
The mother has no relatives in Australia. The trip to Turkey in early 2003 is the only time the mother has visited her family there since she came to Australia, and the only time the child has met her maternal family. She and the child keep in touch with the mother's family in Turkey by way of regular letters, phone calls, Skype, MSN Messenger and pictures. Nonetheless, the mother feels isolated and at times lonely in Australia, and feels a need to see her parents, siblings, nephews and nieces in Turkey. Her father's health “has been bad” and she fears she may not see him again. The mother said in cross-examination that if she stayed in Turkey for some time, her sense of isolation and loneliness would change, as she would be with her family and would feel she has a family.
Despite her feeling isolated and lonely in Australia, the mother said she had no intention of returning to Turkey permanently. She is employed as a permanent part-time [omitted]. She is currently enrolled in an [omitted] course at TAFE. She and the child live in a one bedroom rented unit.
The mother said the child had requested to visit her grandparents in Turkey on a number of occasions. The father said he has not spoken to the child about the proposed trip to Turkey, and the child has not raised the issue with him. Thus, the mother's evidence of the child’s views is unchallenged, and I accept it.
The mother said that [X] is a “bright student”. She attends Turkish language classes on Saturday mornings and is now fluent in the language. [X] identifies as Australian of Turkish background. The child is in regular and frequent contact with the father and her paternal grandparents in Australia, contact that the mother said she encouraged as she believes it is “enriching” for the child.
The parties have been unable to agree on arrangements to permit the mother and child to travel to Turkey. The father in September 2009 proposed that, subject to the mother agreeing to parenting orders he then proposed, the mother and child could travel to Turkey between the end of the 2009 school year and the commencement of the 2010 school year, provided the mother deposited $5,000 in his solicitor’s trust account as security for her return. The only parts of the father's proposal that the mother was not prepared to accept at that time were the limit the father proposed on the duration of the travel and provision of a $5000 cash security for the child’s return.
The mother said that “it is not possible” to travel with the child to Turkey in the Christmas school holidays, as the father proposed, because the weather is “very bad” and the child suffers from asthma which worsens in cold weather. She said that in December and January the air temperature in Turkey “is as low as -5 degrees celcius and occasionally in some areas reaches as low as -12 degrees celcius” (sic). She said that heavy snow falls “sometimes up to 30 days straight from December to mid March”, roads are often impassable and airports are closed for long periods. The mother suggested travelling to Turkey at this time of year would endanger the child’s health and safety.
In cross-examination, the mother denied that she had proposed that she and [X] travel to Turkey in the 2009/2010 Christmas holidays, saying this was the father's proposal. However, she then agreed that she had proposed to the father that she and the child travel to Turkey and also to [F] in Germany, where she said a childhood friend of hers lived, between 18 December 2009 and 18 February 2010. In response to the suggestion that the Northern Hemisphere winter weather was not then a concern to her, the mother said that at the time her uncle was in hospital dying, she wanted to see him before he died, and she did not think of the winter weather. She said her uncle has since passed away.
Accepting that there was an imperative to travel during the last northern winter if the mother was to see her uncle again, it is clear that the mother proposed much more than simply a trip to see a dying relative. Her preparedness to travel at this time of year in 2009/2010, and the extent of the land and air travel she was then proposing, including travel between Turkey and Germany, which she is not now proposing, casts real doubt on her evidence that travel at this time of year may not only pose significant health risks for the child but also face significant disruption to land and air travel.
The mother's attempts to present travel at this time of year as a significant risk is further called into question by her admission that her evidence in chief about temperatures and snow fall, referred to earlier, does not relate to the weather where she proposes to visit.
Further, in cross-examination the mother sought to deny she proposed travelling to [F] in Germany between December 2009 and February 2010, suggesting the proposal came from the other party, despite agreeing that the itinerary showing the trip to [F] was prepared by her, and that the trip to [F] was to meet her childhood friend. Her concession that she had made no enquiries about the weather at that time of year in [F] casts even more doubt on the legitimacy of the mother's expressed concerns about travel in winter to Turkey.
For these reasons, the mother has failed to satisfy me that the child would be in any way endangered, or her wellbeing compromised, by travel in the northern winter.
The mother said that an absence from school as long as she proposed would not prejudice the child’s education as she performs well at school. In support of her contention about the child’s performance at school, the mother relied on the child’s Semester 1, 2009 and Semester 1, 2010 school reports. The level of the child’s academic performance cannot be gleaned from the reports, as they rate “Academic Performance” under one of three columns, headed respectively “Ac”, “WW” and “WT”. There is no key provided with the reports put into evidence as to what these headings mean.
The mother said the child’s class teacher had agreed to provide [X] with “school work by way of printed assignments” to complete while away. She was not challenged on this evidence, and I accept it.
Although somewhat convoluted, the effect of the father's evidence was that he opposed any travel that would involve the child missing more than one week of school. In cross-examination, he disagreed that the child was performing very well at school, or that she was performing in the top strand in almost every subject. However, he said he was not saying the child was not doing well in any area, describing the child’s academic performance as “average”. Despite expressing concern at the child’s progress at school, he said he had not spoken to her teachers about her performance, nor had he spoken to them about the effect on the child of missing school to the extent the mother proposes.
The father's expressed concern about the impact of an absence from school of more than one week is difficult to reconcile with the father's inaction in the face of what he says is his concern at the child’s school progress. That concern was not such as to stir him to speak to the child’s teacher. Nor has he bothered to check with the child’s teacher as to the effect of missing the amount of school the mother proposes, or whether or how any work missed may be caught up.
In the circumstances, I accept the mother's evidence that she has spoken to the child’s teacher about her proposal that the child miss some weeks of school, and that the teacher is willing and able to provide relevant work for the child to cover her absence from school. I am not satisfied that this would adversely affect the child’s school education in the medium or long term, in that I am satisfied any work missed can and will be caught up in the short term.
The mother’s income, derived from her employment, rent on her unit, child support, and family tax benefits, totals $1161 per week and her total outgoings are about $792 per week. She has savings of $6745, a motor vehicle worth no more than $3500, household contents worth $4000, and the equity in her unit of about $37,300. She has a $5000 credit card debt.
In May 2010 the mother “down-traded” her motor vehicle, raising $14,300 on the sale of her former car and buying a replacement vehicle for $3500. She used $10,000 of the surplus for legal fees in relation to these proceedings, and hence the fund is not available to be used for the cash bond the father seeks to secure the child’s return to Australia.
I note that the mother asserted in a financial statement sworn after she down traded her motor vehicle that it was worth $6000. When the vehicle she then had was obtained for $3500 only about a month prior to swearing the statement, the basis of the mother's asserted value is questionable at best. However, she was not cross-examined about why she put this value in her financial statement.
The father expressed concern that if the mother was permitted to take the child to Turkey, she would not return. He said the mother has no family in Australia, and she had on “numerous” occasions said she wanted to return to Turkey to see her family as she misses them. He said he does not believe the mother's assurances that she will return with the child because in 2006 the mother did not book return tickets and did not guarantee to return.
In cross-examination the father said that the fact Turkey was a signatory to the Hague Convention gave him no sense of security about the child’s return to Australia. He said he had no family in Turkey and could not go there himself as he has not performed his military service there and fears he would be conscripted if he returned to his country of birth. However, the father then said he did have family in Turkey, namely aunts, uncles and cousins living about 40 kilometres away from the mother’s family.
The parties’ proposals
The mother wishes to travel with the child to Turkey for eight weeks, staying with her parents and sister in their homes in [D], Turkey, and in [M], Turkey. She ultimately proposed that she and the child travel from Sydney to Istanbul, departing on 10 September 2010, and return to Sydney on 5 November 2010. The mother agreed to the father's request that she provide her motor vehicle, and charge her unit with payment of $15,000, as security for the child’s return.
When I raised issues about the form of the charge both parties were proposing, neither specifying the form of the charge, and about how the secured sum might be recovered if necessary, and raised the option of the mother providing a signed memorandum of transfer in registrable form of her interest in her unit as security, both parties adopted the option of a signed memorandum of transfer instead of a charge.
The mother undertook to provide the father with phone numbers where the child would be while in Turkey and to ensure the child communicated with the father by phone at least once a week while in Turkey. In cross-examination the mother said she proposed that the father communicate with the child by Skype three times a week while she and the child are in Turkey.
While in her evidence in chief the mother said that she and the child would stay with her parents and with her sister at two specified addresses in Turkey, in cross-examination the mother said that she proposed to stay with her family in southern Turkey, and also proposed to travel to [A] and other, unspecified, tourist locations that she said the child wished to see. She said they have cousins at these other locations.
The father proposed that the mother and child travel to Turkey on one occasion, being-
a)for a period of up to three weeks that included the September/October 2010 school holiday period; or
b)for a period of up to seven weeks including one week of school term at either the beginning or the end of the 2010/2011 Christmas school holiday period.
Thus, the father was prepared to countenance the child missing up to one week of school.
The father proposed that the mother's travel with the child be subject to the following conditions-
a)That the mother give the father 30 days’ notice if intending to travel in either the September/October 2010 or the 2010/2011 Christmas school holiday periods;
b)That the mother deposit $5000 with the father's solicitors seven days before departure, such sum to be held on trust pending further order of the court or the child’s return to Australia by the mother;
c)That the mother deposit the NSW motor vehicle registration certificate in respect of “her unencumbered motor vehicle” registered number [omitted] with the transfer of ownership form signed to enable transfer of that vehicle to the father, such Certificate to be held by the father's solicitor on trust pending further order of the court or the child’s return to Australia by the mother;
d)That the mother's interest in her home unit “be and is hereby charged” to secure payment of $15,000 to the father in the event of the mother not returning the child to Australia in accordance with the court’s orders;
e)
That if the mother fails to return the child to Australia “within
48 hours of the date notified to her by the father pursuant to these orders or should the mother do anything to cause the father to fear at any time the mother does not propose to return the child to Australia” in accordance with the court’s orders, the father may use the whole or part of the “said sum of $15,000” to cover all airfares, travel expenses, accommodation expenses, legal fees and similar expenses of the father necessary to secure the return of the child to Australia; and
f)That the mother ensure that the child contacts the father by either telephone or Skype at least three time per week while outside Australia “and that the mother is to facilitate the child’s contact with the father”.
The applicable law
Counsel for the mother submitted initially that the approach the court should adopt in deciding the mother's application for overseas travel by the child was as set out in Kuebler & Kuebler, (1978) Fam LN 4, (1978) FLC 90-434, and Line & Line, (1996) 21 Fam LR 259, (1997) FLC 92-729. Those cases suggest the relevant considerations are -
“(a) The length of the proposed stay out of the jurisdiction;
(b) The bona fides of the applicant;
(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 (of) the court based (on) its assessment of the parties that a promise of a return to the jurisdiction would be honoured.” (per Asche SJ, with whom Gunn and Yuill JJ agreed, in Kuebler, above, FLC at 77,206)
Counsel for the mother submitted that the court should also consider whether the travelling parent proposed to visit a country that was not a signatory to the Hague Convention, and that even if the proposed destination was a convention country, the court should consider the risk of the travelling parent diverting to a non-convention country (Line & Line, above, Fam LR at 265, FLC at 83,846-83,847).
I note that the considerations identified in Kuebler and Line were said not to be exhaustive, and that what was required of the trial judge was “to decide, having regard to the welfare of the child, what was the most appropriate course” (emphasis supplied) (Kuebler).
Part VII of the Family Law Act 1975, under which the current controversy falls to be determined, has been extensively amended since both Kuebler and Line were decided. As is clear from the Full Court decision in Goode & Goode, [2006] FamCA 1346, (2006) 36 Fam LR 422, (2006) FLC 93-296, care is needed before slavishly following cases decided before the present iteration of Part VII was introduced to ensure they are in fact consistent with the current terms of the Act.
It was common ground that the nature of the orders the parties proposed in relation to overseas travel by the child were parenting orders, relating to parental responsibility for the child.
When asked to make a parenting order, the court must follow the present legislative scheme in deciding what order to make, as explained in Goode & Goode. In summary-
a)In deciding what order to make, the child’s best interests are the paramount consideration (s.60CA);
b)Subject to ss.61DA (presumption of equal shared parental responsibility) and 65DAB (parenting plans), the court may make such order as it thinks proper (s.65D(1));
c)In deciding what is in the child’s best interests, the court must take into account the matters referred to in s.60CC within the context of the objects and principles set out in s.60B (Goode v Goode, above, FamCA at [10], Fam LR at 428, FLC at 80,888-9);
d)If the court intends to make an order for equal shared parental responsibility, whether as a result of the application of the rebuttable presumption under s.61DA or otherwise, the court must consider making an equal time order, or, if not intending to make such an order, a substantial and significant time order, in accordance with s.65DAA (as to which, see MRR v GR, [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93-424).
Kuebler and Line identify relevant matters that can be accommodated within the structure of s.60CC. Further, as was made plain in Kuebler, the considerations identified in these judgments were not intended to be an exhaustive list of relevant considerations. For example, they do not explicitly identify any views of the child as a relevant consideration. Yet this is the first of the additional considerations a court must now consider under s.60CC(3), and has always been a relevant consideration in parenting cases under the Family Law Act, whether explicitly stated in the Act or not.
In any event, the non-exhaustive list of relevant considerations identified in Kuebler was for the purpose of the court deciding the most appropriate course having regard to the welfare of the child, or, to use the parlance of the present Act, the best interest of the child, which is the paramount consideration. Part VII now provides much greater structure to the task of discerning the child’s best interests than at the time Kuebler, or even Line, was decided.
In my view, the correct approach in deciding an overseas travel application is to follow the present structure of Part VII and the process of reasoning flowing from Goode & Goode, and within that context, to consider all relevant matters, including those referred to in Kuebler and Line.
Assessment of primary considerations (s.60CC(2))
(a) The benefit to the child of having a meaningful relationship with both of the child’s parents
There is no issue that the child has benefitted, and will in the future benefit, from a meaningful relationship with both parents.
If the mother failed to return the child to Australia in accordance with any order the court may make, there would be a significant risk to the continuation of a meaningful relationship between father and daughter. Even assuming that if the mother failed to return the child the father could, through the relevant Central Authorities in Australia and Turkey, secure the child’s ultimate return to Australia, there would be a potentially significant period when the father and child would be denied face to face contact, and this would potentially harm the father/daughter relationship. It could also harm the mother/daughter relationship, if the child resented the mother for keeping her from her father.
In my view, the child’s age is of some relevance to this consideration. At the child’s present age, ten, she could retain a memory of her father, and hence her relationship with the father might be retained, through a relatively significant absence.
(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
This is not a relevant consideration.
Assessment of additional considerations (s.60CC(3))
(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
I accept the mother's evidence that the child has expressed a wish on a number of occasions to visit her maternal grandparents in Turkey. Having regard to the child’s age, her views are of some significance and warrant careful consideration. It was never suggested to the mother that she had in any way influenced the child’s expressed views, and I accept they are a true reflection of the child’s wish.
(b) The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
I am satisfied the child has a close, warm and loving relationship with both her parents. I am satisfied she has a good relationship with members of the father’s family in Australia that is of value and significance to the child. I am satisfied that the child has some acquaintance with members of the mother's family in Turkey, having visited them for some weeks when the child was less than three years of age, and otherwise having regular communication with them via Skype, telephone and internet text message. I am satisfied that the child wishes to deepen her relationship with members of her maternal family in Turkey, particularly with her maternal grandparents, by visiting them. I am satisfied that doing so would be beneficial to the child in meeting an expressed need of the child and in deepening and broadening her relationships with and knowledge of her extended maternal family, thus contributing to the child’s sense of identity.
(c) The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
and
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Ss.60CC(4) and (4A) are relevant to both these considerations, which I will consider together.
It is of some concern that the father's unchallenged evidence is that the mother blocked the father's time with the child for a short period when he refused her request to consent to the child travelling with the mother to Turkey in early 2006. This reflects poorly on the mother's facilitation of the child’s close and continuing relationship with the father, and on the mother's attitude to the child and the responsibilities of parenthood. To use the child as a weapon in parental conflict, and to use deprivation of time with the child as a means of punishing the father or attempting to coerce him into agreeing to what she wants, shows the mother at times is unable to place the needs of the child above her own.
However, I note that this occurred four and a half years ago, and that otherwise the parents have generally been able to come to mutually acceptable arrangements for the child’s parenting, including when the child passed into the father's primary care for a short time in 2007 at the mother's request, and then passed back into the mother's primary care.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
I have already mentioned potential benefits to the child from the proposed travel to Turkey to meet her extended maternal family in deepening and broadening the child’s relationships with her maternal family, adding to her sense of identity. It would also afford the child some exposure to the culture of the country of birth of both parents, noting the unchallenged evidence of the mother that the child identifies as Australian of Turkish background.
The duration of the child’s absence from Australia, and hence from face to face time with her father, eight weeks on the mother's proposal, is not such as to raise concerns in my view about any risk of harm to the father/daughter relationship, in light of the child’s age.
However, if the mother failed to return the child to Australia as she proposes, and the child’s absence consequently was considerably longer than the mother proposes, there would be significant detriment to the child, in deprivation not only of her contact with a much-loved father, but also in being removed from her settled social, educational and cultural environment in her country of birth. It would also deprive her of her relationship with her wider paternal family.
(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
If the child was not returned to Australia as the mother proposes, it would be totally impractical for the father to spend any time with the child unless and until she returned to Australia. I accept the father's unchallenged evidence that he cannot travel to Turkey without risking conscription into the armed services.
During an absence up to the time the mother proposes, I am satisfied that appropriate telephonic and internet means of communication between the father and the child would be readily available, and would not significantly affect the child’s right to maintain regular personal relations with the father.
(f) The capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
My comments about the mother in relation to the considerations under s.60CC(3)(c) and (i) are pertinent under this consideration. The opportunity for the child to meet and spend more than fleeting time with members of her maternal family in Turkey, especially her maternal grandparents, will meet the child’s expressed need to do so, and contribute to her emotional wellbeing.
I am also satisfied that travel to Turkey and exposure to Turkish culture and culturally significant sites there will help meet the child’s emotional and intellectual needs.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
I have commented already on the relevance of the child’s age, and her identification as Australian of Turkish background, and the relevance of both these considerations to the mother's request to travel.
(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order under this Part will have on that right
This consideration is not relevant.
(j) Any family violence involving the child or a member of the child’s family
This consideration is not relevant.
(k) Any family violence order that applies to the child or a member of the child’s family, if the order is a final order or the making of the order was contested by a person
This consideration is not relevant.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
I am not satisfied that making the orders one party seeks rather than the other’s will be less likely to lead to further litigation between them. Having regard to the child’s age and subject to the mother's financial capacity, I would expect that the mother would wish to travel with the child to Turkey to visit her family again before the child is 18, and without the father's consent, further proceedings will be necessary.
(m) Any other fact or circumstance that the court thinks is relevant
As mentioned, Turkey is a Convention country. There is no evidence to suggest there is a risk the mother may divert to a non-Convention country if permitted to travel with the child. Such a suggestion was not put to the mother in cross-examination. The father's case seems to be that the risk of non-return is that the mother would remain in Turkey, her country of birth and where her family members live.
The mother sought to suggest that travel to Turkey in winter would be detrimental to the child. I have found that, considering the mother's own proposals for travel with the child to Turkey and Germany in the 2009/2010 northern winter, the mother's evidence about this is not persuasive.
Assessment of competing proposals
Under s.61DA, when making a parenting order, the court must apply a rebuttable presumption that it is in the child’s best interests that the child’s parents have equal shared parental responsibility for the child. I am asked to make what is agreed to be a parenting order in relation to parental responsibility. It appears to be common ground that the orders each party proposes involve a departure from equal shared parental responsibility at least in relation to the matters covered by those orders. It must be the position of each of the parties that, to the extent the orders each proposes do not accord with equal shared parental responsibility, equal shared parental responsibility would not be in the child’s best interests, and if the court makes orders resolving the issue between the parents as to overseas travel, there will not be an order for equal shared parental responsibility as contemplated by s.61DA, and hence s.65DAA does not apply.
There seems no issue that travel to Turkey by the child will be beneficial to the child, provided the child is returned promptly to Australia. The issues revolve around the duration and timing of the travel and steps to seek to ensure the child’s return.
As to the duration of travel, I am not satisfied that at the child’s current age and level of education, missing the amount of school that the mother's proposals entail will be detrimental to the child. I am satisfied she can and will be given worksheets to complete while travelling, and that work covered in class while she is absent can be readily caught up. In any event, the proposed travel will provide educational benefits to the child that could never be provided in a classroom.
As to the time of year for the travel, I am not satisfied that travel in the northern winter would be detrimental to the child as the mother suggests. However, common sense suggests that travel in the warmer months may well be more pleasant than travel in the colder months, and that warmer weather and the longer hours of sunshine in the warmer months may well be more conducive to outdoor activates, be they family gatherings or sightseeing, than colder weather.
The most significant issue is the risk of non-return, the potentially very serious risks to the child if she was not returned, and whether and if so how the risk of non-return may be reduced by the provision of security.
The facts that argue in favour of the mother being believed when she promises to return the child are that she and the child are well settled in Australia, subject to the mother's lack of family support, the mother's ownership of property in Australia, her employment here, her and the child’s citizenship, and the fact neither have a Turkish passport.
The facts that suggest the mother may not return the child as promised are her feelings of loneliness and isolation from her family, despite use of electronic communication including Skype, the relatively modest value of her property in Australia and her financial difficulties, she having moved out of her home unit to rent it and live in much cheaper accommodation, the presence of the mother's immediate family in Turkey, the mother's dual Australian and Turkish citizenship, and the fact that the mother may be able to apply for Turkish citizenship for the child.
A further matter relevant to considering the weight that should be attached to the mother’s assurances of return is her credit on her oath. In my view her evidence about the suggested risks of winter travel to Turkey was quite disingenuous, because the mother herself proposed travel to Turkey and Germany in the last northern winter. However, I was not satisfied the mother’s credit was successfully challenged in any general sense, and while her evidence about the risks of winter travel was an exaggeration, it was not false.
It would be a very rare case indeed where a court could say there was no risk of non-return if it permitted overseas travel by a child. The court must as best it can assess the extent of the risk, and unless the risk is such that it outweighs the benefits of travel, then the court must implement strategies to attempt to manage and minimise the risk of non-return, bearing in mind the magnitude of the risk as assessed by the court.
I am satisfied that the risk of non-return of the child if permitted to travel is real, but that the risk is relatively low. I am satisfied that the mother has a significant attachment to Australia despite her sadness and loneliness at being separated from her family and the modest extent of her assets, that the child is well settled in Australia, and that the mother recognises this and would be unlikely to significantly compromise the child’s welfare by retaining her overseas.
It is inherent in the father's position that the risk of non-return is not such as to outweigh the benefits to the child of the travel, or as to be incapable of appropriate management and minimisation.
As identified in Line, above, there are at least two purposes of requiring a party wishing to travel overseas with a child to post security for the child’s return, namely the provision of a strong impetus to the travelling parent to return and recover the security, and the provision of a fighting find for use by the other parent to seek the return of the child if the travelling parent does not return.
As to the latter purpose, provision of a fighting fund, there is no evidence about how much it might cost the father to seek the return of the child from Turkey, either under the Hague Convention or otherwise. However, it was submitted on behalf of the father that even taking action through the Australian Central Authority would involve the father in some legal costs, as he would need to deal with the Central Authority, both to initiate action to seek the child’s return and to answer any queries from the Central Authority, through his solicitors. Nonetheless, there remains no evidence to attempt to quantify, even in the broadest sense, any possible costs he might incur.
Thus, the evidence only permits the court to take the aspect of costs of seeking a return of the child into account in the broadest sense, and otherwise to consider the provision of security for the purpose of securing the child’s return.
If the father proposes conditions of travel that the mother cannot meet, to impose such conditions is to preclude the travel. And I am satisfied that imposing a requirement that the mother post a $5000 cash security for her return is beyond her financial means within the timeframe contemplated by the orders proposed by both parties, that is, by the beginning of the next Christmas school holidays at the latest. Nor is there evidence to enable the court to determine whether the mother may be able to save sufficient to provide cash security of $5000 in any particular time frame in the absence of any cross-examination of her to this effect.
The money the mother currently has is needed to fund the trip. There is no evidence to suggest she has access to further cash funds. I am satisfied she cannot satisfy a requirement to post a $5000 cash security within the time frame contemplated by the orders proposed by the parties or within any other particular timeframe. I am satisfied that to require the mother to provide such a cash security is to in effect preclude the travel as proposed by both parties, that the travel is in the child’s best interests provided the court can have reasonable satisfaction that the child will be returned, and hence such a condition should not be imposed.
On the other hand, the provision of the registration papers to the mother's car with the transfer of ownership section completed by the mother would not be likely to provide any significant impetus for the mother to return. The mother bought the vehicle a few months ago for $3500. I infer from her evidence of down-trading her vehicle, that what she paid was the retail price for the vehicle. What might be obtained by selling the vehicle to a motor dealer would be considerably less. The potential loss of the vehicle would provide little if any motivation to the mother to return the child to Australia.
The only significant security the mother can provide is her unit. The amount of her equity is uncertain. While I accept she has honestly said what she thinks it is worth, her opinion is based on a market appraisal, not a valuation. The father has not provided any valuation evidence. If the mother did not return, the mortgage would cease to be serviced, and the equity in the home could very quickly erode.
For that reason, I am not satisfied that provision of a charge over her interest in the unit to secure payment of a sum of money in the event of the child’s non-return is appropriate. Such a course potentially raises difficulties and delays in being able to realise the asset to recover the secured amount. And delay may frustrate the recovery of the secured amount if the equity dissipates through non-payment of the mortgage and perhaps the mortgagee entering into possession and selling the property.
Nonetheless, bearing in mind the level of the risk as I have assessed it, security should be required to seek to ensure that any decision of the mother not to return would come at the cost of her Australian assets. That is necessary in my view because of the modest nature of those assets.
Decision
I therefore propose to permit the mother to travel with the child as she seeks, but on condition that before she may travel, she must provide to the father's solicitor duly executed transfers in the father's favour of all her interest in her car and her unit, the transfer of the unit to be in registrable form, such transfers to be held by those solicitors pending the child’s return to Australia or further order of the court. On the child’s return to Australia in accordance with the orders, the father's solicitors should return the transfers to the mother.
If the child is not returned in accordance with the court’s orders, then the father's solicitors should have liberty to apply ex parte for orders that would enable the father promptly to sell the car and unit and to apply the proceeds to meet his legal costs of seeking the child’s return to Australia.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Halligan FM
Associate: Deanne Bush
Date: 28 July 2010
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