ABBEY & SEYMOUR

[2020] FCCA 112

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABBEY & SEYMOUR [2020] FCCA 112

Catchwords:
FAMILY LAW – Parenting – overseas travel-all best interests of child – orders made.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC

Applicant: MR ABBEY

Respondent: MS SEYMOUR

File Number: PAC 3798 of 2016

Judgment of: Judge Newbrun

Hearing date: 1 November 2019

Date of Last Submission: 1 November 2019

Delivered at: Parramatta

Delivered on: 29 January 2020

REPRESENTATION

The Applicant appeared in person

The Respondent appeared in person

ORDERS

1. The father’s applications in relation to travelling with the child [X], born … 2014, to Country A, as set out in his Affidavit filed 27 November 2019, are dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3798 of 2016

MR ABBEY

Applicant

And

MS SEYMOUR

Respondent

REASONS FOR JUDGMENT

1. This is the determination of the father’s application that he be permitted to take the subject child [X] born … 2014 for holidays to Country A for a period of three weeks during the long school holiday period at the end of each year; the father’s discrete applications in this regard are set out in his affidavit filed 27 November 2019. The mother opposes such application.

2. The father relied upon his Affidavit filed 27 November 2019.  The mother relied upon her Affidavit filed 16 December 2019.  The parties agreed that the Court should make its determination, in relation to the above issue, on the papers and without further submissions or cross-examination.

3. As to relevant legal principle, the Court refers to relevant provisions of the Family Law Act1975 (Cth), including s60B (the objects of the said Act), section 60CA of the said Act, and section 60CC of the said Act.

4. The father hails from Country A and was born on … 1989.  The mother was born on … 1982.

5. By way of background, in terms of these proceedings, interim parenting orders were made by consent on 23 March 2017 providing, inter alia, that the child live with the mother; that the child spend supervised time with the father at Family Relationship Centre B Town C for a period of three hours each alternative Sunday.  A restraining order in relation to the child being taken out of Australia was made at this time.

6. On 13 October 2017, the Court made interim parenting orders providing, inter alia, that the father spend time with the child during the daytime for certain periods, with such time to occur in the greater Town C and Region D.  Such time was to occur from 13 June 2018 for six hours.

7. By way of final parenting orders, by consent the Court made orders on 29 July 2019, inter alia, that all previous parenting orders be discharged; that the parties have equal shared parental responsibility for the child; that the child live with the mother; that the child spend time with the father by agreement but failing agreement during New South Wales school terms, in the third weekend of each month, from 5PM Friday until 4PM Sunday commencing 2 August 2019, and during NSW school holiday periods, for one week during the short school holiday periods, and during the term 4 school holiday period for half of such holiday period.

8. The father became an Australian citizen in November 2019.

9. The father currently lives with his new Australian wife Ms E at the Suburb F residence of the new wife’s parents.  The father and his new wife have a five-month-old daughter named [G].

10. The mother lives near Town C.

11. The father is a full-time student; he is studying at H University.

12. The father pays no child support.  He asserts that he has no income, no employment and that he is currently fully supported by his new wife.  The mother asserts that she is owed about $2,673 by the father for child support.

13. The father asserts that he has no intention to move to Country A or any other country; he asserts rather that his intentions are to become qualified, work hard, buy a house and remain in Australia with his Australian family.

14. The father expressly states that he refuses to pay a security bond for his proposed travel with the child to Country A, by reason of his stated financial circumstances.

15. The father asserts that the child finds it difficult separating from the father and his family located in Sydney.  He asserts that when the father explains that he has to go to Town C with his mother he always asks if he can stay more days.  The father asserts that the child loves to be with the father.  The father asserts that he has become more involved with the child since the child has been allowed to stay at the father’s home overnight.  The father asserts that the child also has a great relationship with his new wife and the child [G].

16. The father asserts his belief that the child will not have any problem being away from the mother for three weeks because the child has already stayed with the father for almost 13 days and has not shown any type of problem, instead, the child has stated that he wants to stay more days.

17. The father states that he is planning to travel to Country A with his new wife, together with the subject child and [G], in order to introduce them to the extended Country A family.  In this context, the father asserts that the child has over 160 members of “the Abbey family in Country A including his two grandparents, three uncles, three aunties and 12 cousins.”

18. The father states that he has no planned travel at this stage due to lack of funds, but once able to save, he would love to introduce the subject child to his Country A family.

19. The wife states that the child does not speak Language I.  The wife asserts that the father’s Country A family do not speak English.  The mother asserts that she has asked the father if he would pay half of proposed Language I lessons for the child, if the mother booked the child in for such lessons, but the father has declined.

20. The mother asserts that the child recently mentioned to her that the father’s mother may come to Australia.  The mother states that if that is the case, she is willing to allow the child to go to Sydney to spend quality time with the paternal grandmother and she would be happy for the paternal grandmother to visit the child in Town C.

21. The mother disputes the father’s assertion that the child has stayed with the father for almost 13 days.  Rather, the mother asserts that the child has never stayed with the father for more than five consecutive days.

22. The mother asserts that the child is currently seeing a Ms J from K Psychologists in Town C and has been going there since mid-January 2019 with his last appointment being in late October 2019.  The mother states that these consultations will be ongoing to help the child with the transition of going to Sydney every third weekend to see the father in Sydney, which is three hours away.  The mother asserts that the child has found night times hard and often cries.  The mother asserts that the child mentioned to her after his last visit on 25 October 2019 that he was upset and wanted to call the mother but which was denied by the father.

23. The mother asserts that by the child going to see Ms J she is also wanting to relieve the child of any extra stress that he may face if he were to go to Country A and helping prepare himself and build up resilience.

24. The mother asserts that the child has told her that he has been crying at night wanting her and on occasion has clung to the mother crying not wanting her to go to the father’s home.  The mother states that the father claims that the child would not have any problem being away from the mother for three weeks but the child struggles with three days.  The mother refers to the child coming back withdrawn (after having spent time with the father); and his anxiety levels are high when he is returned to the mother.  The mother asserts that “the cycle repeats itself, nightmares, bedwetting, [the child] won’t let me out of his sight.  Cries when I’m out of sight or take too long outside in the garden.  [The child] has said he is scared that I’ll leave him.  [The child] has told me recently he feels like the father would just leave him somewhere.  Since [the child] has started his regular visits with his father it has only given [the child] more separation anxiety and has changed his behaviour for the worse.  It is a grave concern as a mother.”

25. The mother asserts that she accepts that the child has a right to have a relationship with his paternal grandparents, but it would be preferable for the child to develop a relationship via FaceTime firstly and try to communicate in Language I rather than travel to Country A for now.  The mother asserts that the child is still far too young to go to Country A without her.

26. The mother asserts that she has been the child’s primary carer since birth to date.  The mother asserts that the child has not had enough time with the father to build a solid and secure relationship as “it has only just begun”.

27. The mother asserts that her communication with the father is barely civil presently.  She asserts that she and the father cannot amicably communicate.  The mother refers to sending a text message to the father’s new wife in late May 2019 on Facebook to see if she would communicate with the mother.  The father responded to that message in an aggressive manner stating to the mother, inter alia, that the father and his new wife do not like the mother at all.  The father forbade the mother from contacting his new wife.  He stated that if the mother needs to contact him it will only be by email.

28. The mother refers to picking up the child on 9 December 2019, as agreed.  She noticed that the child had a cut and bruise on his left eye.  She asserts that the father did not mention anything to her about any injuries.

29. The mother asserts that if the father refuses to communicate with her in Australia over simple things then how is the communication going to work all the way from South America.  She asserts that the father is unreliable here so this does not put her at ease with thought of the child going overseas.

30. The mother finally asserts that for the child’s well-being, his anxiety and attachment issues raise great concern on how he will not cope being that far away from the mother and that the mother is the child’s security blanket.

31. The child would appear to have positive relationships with both parents and would benefit from a continuance of those relationships.

32. On the material before the Court, the Court has a concern that the child will experience significant anxiety if spending three weeks away from the mother, if allowed to travel to Country A with the father.  As asserted by the mother, the child has only been spending time with the father, since the final parenting orders of July 2019, for three days every third weekend and one week during public school holidays and moreover, in this context, the child has been experiencing anxiety having spent such time with the father, and continues to receive psychological assistance for anxiety (which began in January 2019).

33. The Court is not persuaded that any anxiety experienced by the child, if allowed to travel to Country A, would be significantly alleviated by orders permitting the mother to speak to the child in Country A by telephone or other electronic social media, in view of the father’s dislike of the mother and their apparent ability to communicate via email only.

34. There is some force to the mother’s contention that the child’s inability to speak Language I, and the father’s paternal family’s inability to speak English, would compromise, to a not insignificant extent, the quality of the child’s time with the father’s paternal family in Country A.  And the court would add that such language barrier may tend to exacerbate the child’s anxiety in being separated from the mother whilst visiting the paternal family in Country A. There is some force to the mother’s contention that the child would benefit by presently beginning to learn at least basic Language I.  There is also some force to the mother’s contention that the child could presently begin to communicate, however modestly with the present language difficulties, via FaceTime, with the paternal family. 

35. The Court is of the view, on the material presently before the Court, that, for the above reasons, the father’s application to take the child to Country A for three weeks each year to visit the paternal family is premature and would not be in the best interests of the child.  The father could give consideration to making a fresh application in due course after, inter alia, and in particular, the child’s anxiety issue has been resolved. It would also be helpful in this context, if the parties could take positive steps to bring about a more productive co-parenting relationship.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Associate:

Date: 29 January 2020