Zusak and Phelan

[2011] FMCAfam 1367

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ZUSAK & PHELAN [2011] FMCAfam 1367

FAMILY LAW – Parenting orders – whether child can travel overseas to China for a holiday with her father – who should hold the passport – application of the father acceded to.

Family Law Act 1975 (Cth), s.60CC

Applicant: MR ZUSAK

Respondent: MS PHELAN

File Number: MLC 9619 of 2010

Judgment of: Hartnett FM

Hearing date: 7 December 2011

Delivered at: Melbourne

Delivered on: 7 December 2011

REPRESENTATION

The Applicant: Appeared in person

The Respondent: Appeared in person

THE COURT ORDERS THAT

1. Paragraphs 1 and 2 of the orders made on 1 July 2005 be discharged and the name of the child [X] (also known as [X]) born [in] 2000 be removed from the Airport Watch List (also known as the PACE Alert system).

2. The Australian Federal Police be requested to give immediate effect to this order.

3. The father shall retain possession of the child’s passport and citizenship certificate.

4. The father shall be permitted to travel with the child to China for the purpose of a holiday for one month during the 2011/2012 summer school holidays AND THE COURT NOTES the travel plan as provided by the father in his affidavit sworn 28 November 2011 (paragraphs 2 and 3).

5. The mother shall deliver the child to the father at McDonald’s [suburb omitted] at 10.00am on Monday 26 December 2011 and the father shall return the child to the mother at the same venue at 4.00pm on 30 January 2012.

6. In the event the mother fails to comply with order number 5 herein then a recovery order do issue authorising/directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:

   (a)to find and recover the child [X] (also known as [X]) born [in] 2000 and to deliver the said child to the father at [address omitted] in the State of Victoria, or such other place as the father and the person effecting such recovery agree to be appropriate; and

   (b)to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said child may be found.

7. During the child’s stay overseas with her father she shall telephone her mother on three occasions each week and the father is to ensure such communication occurs. In addition, the mother is at liberty to telephone the child at all reasonable times.

8. On the child’s return to Australia she be returned to the care of her mother at 4.00pm on 30 January 2012 and thereafter notwithstanding any other orders to the contrary she spend 14 continuous days in her mother’s care before a resumption of the operative orders providing for the child to spend time and communicate with her father.

9. Liberty to apply on short notice.

10. Otherwise all extant applications are dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 9619 of 2010

MR ZUSAK

Applicant

And

MS PHELAN

Respondent

REASONS FOR JUDGMENT

1. What is before the Court this day is the amended initiating application of the father filed 29 November 2011 (his initiating application being filed on 16 June 2011) and an amended response filed by the mother on 21 October 2011.  I note the amended response is filed prior to the amended initiating application but it addresses the orders that are sought by the applicant father. I deliver these reasons ex tempore.

2. The issues between the parties are as follows:

   a)the father wishes to take the parties’ daughter [X] born [in] 2000 (also known as [X]) to China for a holiday of some four weeks’ duration between 27 December 2011 and 30 January 2012.  The mother opposes the trip; and

   b)the father is to obtain tomorrow, a passport for [X].  He wishes to retain possession of that passport and the mother opposes his retention of such passport and seeks that she retain the passport or in the alternative that this Court hold [X]’s passport; and

   c)

   the parties agreed at the hearing on 29 August 2011 that [X]’s name be removed from the Airport Watch List.  Her name had been placed on such List by an earlier order of the Court and both parties agreed that at this stage in [X]’s life there is no further need for her to be listed on the Airport Watch List.  However,

   
   

   Ms Phelan now does not give her consent, and did not at the last court hearing on 29 August 2011, to the withdrawal of [X]’s name in circumstances where the father would retain the passport, and/or in circumstances where the father would take [X] to China in the forthcoming holiday period.

3. These matters are in essence the ambit of the current dispute between the parties. Mr Zusak and Ms Phelan have been before the Court on many occasions in respect of parenting orders for [X]. These appearances have included contravention applications brought by the father who has had great difficulty in obtaining regular time spent with his daughter. It is fair to say that Ms Phelan has been quite obstructional and there are previous proven contraventions of orders by her. In addition, there was considerable non-compliance by the mother with orders for the father and [X] to spend time together between July 2005 and December 2010.

4. Both parties are litigants in person and have the assistance of interpreters in the Mandarin and English languages. The father relies upon affidavits sworn by him on 16 June 2011, 10 October 2011 and 28 November 2011. The mother relies upon affidavits sworn by her on 24 August 2011, 7 October 2011, 30 November 2011 and 5 December 2011.

5. [X] is a young girl of some eleven-and-a-half years now who was born in Shanghai.  She has been throughout her life in the primary care of her mother and has a good relationship with her mother.  Her father has since separation in 2001 constantly endeavoured to spend time with [X], but the mother has failed at times to promote the father-daughter relationship.  Fortunately, both parties are complying with the current orders of the Court and thus the father has been able to spend time with [X], which has included overnight and holiday periods of up to two weeks in duration and occurring interstate. The child’s best interests have been served by this development of her relationship with her father.

The Passport

1. The Court proposes that the passport, obtained and paid for by the father, remain in the possession of the father.  The Court is confident that such passport will be kept in a safe place and will be available for use by either of the parties into the future for the benefit of [X].

2. It is not necessary for the Court to hold the child’s passport.  The Court is satisfied that the father will only use same for overseas trips with the child which have firstly been canvassed with the mother and her consent sought. In addition, the Court is satisfied he will make same available to the mother were she to contemplate travelling with [X] or were she to require same for the purpose of a school trip or the like for [X]. The Court could not be so confident of the mother co-operating with the father were she to hold the passport, nor could it be confident that the passport would not be lost or claimed to be so. [X] had a passport which expired on 1 September 2011. The mother claimed it to have been lost whilst in her possession. Further, she claimed that [X]’s birth certificate had been lost whilst in her possession. The Court does not accept her evidence. Her intention in making such claims was to prevent the father from holding the passport and prevent him from readily being able to apply for a further passport. Her holding [X]’s passport into the future would only lead to further litigation between the parties which it is necessary to avoid. In addition, it would create further conflict between the parties and uncertainty for [X] in her travel plans which could not be in her best interests.

The Proposed Trip

1. The mother’s opposition to [X] travelling to China in the time frame proposed by the father is that she says it will be very cold in China and [X]’s health will be adversely affected.  The mother deposed in her affidavit sworn 30 November 2011 that [X] suffered from bronchitis; that it would be cold in China and that [X] could easily get a cold.  The medical evidence annexed to the affidavit of 5 December 2011 of the mother does not refer to the child suffering from bronchitis.  Dr C does say, however, that he understands - from it is not clear what source - that the Chinese winter will be more severe than Victoria’s winter, and remarked:

   “…it is fair to say that [X] will need to adapt to this and she will be at an increased risk of having respiratory infections and her eczema is also at a higher risk of being exacerbated.”

2. The Court is satisfied that the father understands the responsibilities of parenthood and that he actively promotes [X]’s welfare.  The Court is satisfied that he would not take [X] into a dangerous situation or place her health unnecessarily at risk.  The father relies upon his affidavit sworn 28 November 2011 which was an affidavit sworn and filed by him in accordance with orders made 8 November 2011.  It sets out the itinerary for travel, including air flights and where he intends to stay with [X] whilst in China in each part of the trip. The father further sets out the mode by which [X] can remain in contact with her mother, and he sets out the activities that he proposes to engage in with the child and with the extended paternal family.  In particular, [X] and her father will stay for some of the time at the home of the paternal grandmother.  This trip will benefit [X].  She will be able to meet her paternal relatives, in particular spend time with her paternal grandmother, and she will be further exposed to her Chinese heritage and culture.

3. I am satisfied that the father will make all necessary arrangements to ensure that [X] remains in good health as far as he is able. As to the cold climate, the father’s evidence is that he will dress [X] appropriately, that his mother has heating in her home (evidence given orally this day) and that some part of the holiday will occur in Hainan, which in January has generally mild and sunny weather with average temperatures of approximately 20 degrees Celsius. 

4. [X]’s best interests are the paramount consideration. The Court has looked to s.60CC of the Family Law Act 1975 (Cth) (“the Act”) and considered the matters set out therein. This trip will promote a meaningful relationship between [X] and her father and despite the mother’s assertion that she worries about [X]’s safety and about her disappearing or being sexually abused in the father’s care, there is no evidentiary basis for such a concern. There is no evidence before the Court of [X] being treated, by each of her parents, in anything other than a responsible, caring and loving manner and any allegations of the mother to the contrary are rejected. I accept the father’s evidence that [X] wishes to accompany him on the proposed trip. The mother suggests that such travel wait until [X] is 15 years of age. The paternal grandmother is elderly and frail and may not survive until that time. Her husband has died. [X] wishes to meet with her.

5. Finally, the advancement of [X]’s health is central to the mother’s objection to the proposal put forward by the father. No other aspect of the trip, including its duration is now argued. The father has carefully considered [X]’s age and needs and has planned what should be a wonderful holiday.

Airport Watch List

1. [X]’s name shall be removed from this List. The mother proposed this removal herself in her affidavit evidence and confirmed same in Court on 29 August 2011. Her objection today is not because she fears that the child will be removed from the jurisdiction but because she does not wish for the travel to occur at this time. Both parties observe [X] to be well settled in Australia, as are they. This trip is to benefit [X] and promote her extended family relationships in China. [X]’s parents now trust each other sufficiently and [X] is of an age were they do not consider there to be any further need to have [X] restrained from leaving the Commonwealth of Australia.

2. The Court shall make orders in terms of order 7 of the final orders sought by the father which makes provision for the mother to deliver [X] to the father on 26 December 2011, and the Court shall make further orders (given the history of this matter between the parties and the mother’s earlier non-compliance with orders) that in the event the mother fails to comply with such order for delivery up of [X] to the father, then a recovery order will become operative. Clearly, that would not be desirable and hopefully the mother will comply with the order of the Court and promote her daughter’s best interests.  

3. I have given consideration to a recovery order because the father may not have any time to come back to Court on 26 December 2011 and the plane is leaving the following day.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Date:  12 December 2011