International travel allowed

International travel allowed

The following is annotated. For full case: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2016/840.html?stem=0&synonyms=0&query=family%20law%20act

Murray & Sandford [2016] FCCA 840 (13 May 2016)

Discussion of Evidence

28. Both parents gave evidence and were crossexamined. An Independent Children’s Lawyer had been appointed for the children and thus Counsel for the Independent Children’s Lawyer, Mr Jackson, was able to provide a thorough crossexamination of both parents, but particularly of the Mother in circumstances where the Father was representing himself.
29. Both parents impressed the Court about their commitment to the children, and to the family generally. Family is clearly important to both of them. The conception of family to both parents includes the extended family, most of whom live in (country omitted) and not in Australia. It seems clear that these children enjoy good relationships all around. That, of course, is not the issue in this case but rather whether on an objective review of the evidence there is an unacceptable risk that if the Father were able to take both of them overseas at the same time, he would not return with them to Australia and thus deprive the Mother of their close relationship with her.
30. It is important to record that both parents were crossexamined about all of the issues then before the Court, that is, the issues which had not narrowed as at the time of their crossexamination. Thus, it was possible to form a broader impression about credit issues. The Court thus found the Mother to be vague, at times, in her evidence and even sometimes inconsistent in her concerns about the Father’s travels with the children.
31. The Court is sceptical about the evidence that both parents gave, in relation to their perception of the children’s views, in relation to the issues before the Court. The Court places no weight on such evidence, given the inherent unreliability of the partisan account of what children are purported to say. In any event, it is apparent that these children are very much aware of the conflict between the parents and thus the Court does not discount the possibility that they may be saying what they believe that their parent wants to hear.
32. The Father’s evidence was not characterised by the vagueness and inconsistency, at times, of the mother’s evidence. Indeed, he was probably the more impressive witness on the day.
33. As the Father raises no concerns about the Mother’s travel with the children overseas, the focus really does turn to the Mother’s concerns about the Father. In relation to the Father, the evidence before the Court indicates that he is a currently unemployed (occupation omitted). Whilst he has been granted permanence in Australia, he is not an Australian citizen. His wife is (nationality omitted). She too is currently unemployed, though seeking work as an (occupation omitted). The Father clearly has strong ties to (country omitted), including strong family ties. He travelled there twice in 2012 and once each in 2014 and 2015. In each case, however, he has not been able to take either of his boys because, he believes, he could not choose which of the boys to take between them and he didn’t feel it was appropriate to separate the boys.
34. He agreed that, however, when the parents separated in 2008, he did return to (country omitted) with both boys, initially leaving the Mother behind in Melbourne. It was put to him that indeed, he only returned to Australia with the boys after the Mother had represented to him that she would reconcile. He firmly denied this, insisting that the children were returned to Australia with him after the Mother had indicated she would not reconcile with him.
35. In 2012, the issue of international travel was very much a live one as between the parents notwithstanding the February 2012 Consent Orders. He was cross-examined in relation to an email that he sent to the Mother on 4 April 2012. What this email plainly indicates, according to its terms, is that notwithstanding the orders of 21 February 2012, which specifically dealt with international travel, the Father still regarded this issue as an “unresolved” issue.
36. The Father justified his view by reference to the fact that he did not have the benefit of advice at the time the Consent Orders made 21 February 2012 had been entered into. When pressed, however, he agreed that he had legal representation during those proceedings but not necessarily at the time of the Consent Orders.
37. The Father was then taken to an email that he sent to the Mother on 16 October 2013. The context to this correspondence was the Mother seeking the Father’s consent to the release of children’s passports so that she could travel to (country omitted) between 24 December 2013 and 4 January 2014. This was required pursuant to the orders of 21 February 2012. In the sent email, the Father says at one point:
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    This is to ensure that the children will not travel to any other countries from (country omitted), including non-Hague convention countries such as (country omitted). Otherwise, the non-Hague convention countries travel conditions will apply, as there is no proof at the moment that you will not travel to (country omitted) or other countries from (country omitted). We will also need to amend the court order to reflect the restrictions and also safe and fair travelling policy for the children.

38. In a email dated 18 October 2013 from the Father to the Mother, he again refers to the issue of the children travelling from a Hague convention country to a non-Hague convention country and thus “never return”. Indeed, in that email, it is apparent that what the Father was seeking to implement was an agreement about international travel that made “no difference between travel policies between Hague and non-Hague convention countries.”
39. The Court observes that the potential significance of this evidence is that at no relevant point did the Father express concern about the Mother not returning the children to Australia, whether they travelled to a Hague or non-Hague convention country. Also, the context of this correspondence makes it obvious that despite the Father’s contention to the contrary, heraised the issue of travel from Hague to non-Hague convention country, not the Mother.
40. The Father agreed that he does not own property in Australia. He agreed his family has property in (country omitted) but not he personally. He accepted that the Mother had a concern about him travelling to (country omitted) with the boys but not returning. He acknowledged the lack of trust issues between them. He acknowledged that there was a basis for her lack of trust in him. He agreed that he had accessed her private emails. He agreed that the Mother had never threatened to remove the children from Australia or from his care.
41. The Father explained that he was not yet an Australian citizen because, in order to do so, he would have to give up his (nationality omitted) citizenship. He explained that he “loves both countries”. He has family there. He wants the boys to maintain a connection there including (nationality omitted) citizenship.
42. When cross-examined by Counsel for the Independent Children’s Lawyer about the emails he sent to the Mother (referred to above) he explained that he could understand how the Mother might have been anxious on receiving those emails but he explained that if he were planning to do that, that is, travel from a Hague convention country to a non-Hague convention country, he was hardly likely to openly refer to that in a correspondence. He, in fact, doubts the genuineness of the Mother’s fears about the children’s non-return and suggested she had another unrelated motive.
43. He agreed, however, that the boys do not have much of a memory of (country omitted), even though he has sought to foster a close affiliation with (nationality omitted) culture with them. They speak (nationality omitted) at home. They eat (nationality omitted) food.

Closing submissions

44. Both Counsel for the Mother, and the Independent Children’s Lawyer, acknowledged that the case was finely balanced but both agree that the Father’s emails to the Mother do give rise to concerns and that the Mother’s anxiety about the issues before the court was both genuine and reasonable, given that (country omitted) is not a Hague convention country. The Father’s connections to (country omitted) seemed, on the evidence, to be stronger than his connections to Australia, all of which fuels the Mother’s anxiety and, ultimately, makes it a significant factor in terms of her parenting the children.
45. Both Counsel accepted the obvious benefits to children of travel, but both recognised that these children are already exposed to their (nationality omitted) culture in their Father’s home. The Mother’s Counsel emphasised the lack of trust that existed between the parents and the Father’s contribution to this.
46. The Father submitted that the issue of the children’s travel to (country omitted) was one that he considered a basic human right for them and integral to the importance of maintaining the family connection. He did not believe it was in the best interests to be able to travel with one of the children only and emphasised the importance of the children knowing, as well as physically feeling a part of the paternal family.

Determination

47. This case is finely balanced, indeed, more finely balanced than Counsel may have appreciated. The decision could go either way. The Father’s emails to the Mother in 2012 and 2013 are not determinative in their own right but, in a finely balanced case, they cannot be ignored. Whilst the Father’s sense of family and the importance of his family’s links to their (nationality omitted) heritage and culture, it is somewhat odd that despite 4 visits to (country omitted) since 2012, he has not taken either of the boys at any time.
48. This is somewhat inconsistent with his stated position about the importance of the boys knowing the paternal family. If the Father had, for example, implemented the rights that he had under the existing Order, both boys could have travelled back to (country omitted) with him twice since the 2012 orders. This raises a question in the Court’s mind about the genuineness of the Father’s statements and indeed of his motives. If it really was about the boys and their cultural links and if this really is as important as the Father asserts, the Court cannot understand why he has not travelled with even one of the boys, using the opportunities he has had.
49. The objective facts are that he does have stronger ties to (country omitted) than Australia. The strength of his ties to (country omitted) and the very poor relationship he has with the boys’ mother, creates a possible motive for him to remain in (country omitted) with the boys. Indeed, viewed objectively and even on a finely balanced case such as the present one, his motives to remain in (country omitted) are greater than his motives to remain in Australia. There is, therefore, a risk to the boys of not being returned, a risk that is greatly mitigated if only one can travel with their father at any one time. The fact is that (country omitted) is not a signatory to the Hague Convention.
50. The effect of the Orders that the Mother seeks would be to maintain existing Order 18, thus meaning the father could only travel to (country omitted) with one child. The effect of order 2 sought by the Mother in her minute would be, in effect, to extend that restriction to travel by the Father even to a Hague Convention country, on the basis that the risk acknowledged by both parents in the evidence is on-travel from a Hague country to a non-Hague country. The Court accepts this is a risk. Order 3 proposed by them otherwise deals with her travel to any Hague Convention country.
51. The Court believes that the Orders sought by the Mother are appropriate and in the best interests of the children. Thus, order 19 made by consent on 21 February 2012 is discharged and the 2 further Orders proposed by the Mother in her minute, Orders 2 and 3, be made to supplement the orders of 21 February 2012.
52. One minor issue remains for determination. Whilst both parents seem to agree that the children’s (nationality omitted) passports should be renewed, they cannot agree as to the mechanism for achieving this. Order 4 proposed by the Mother is appropriate under the circumstances and is the Order that the Court makes.