Austen & Manz
[2022] FedCFamC1F 839
Federal Circuit and Family Court of Australia
(DIVISION 1)
Austen & Manz [2022] FedCFamC1F 839
File number(s): SYC949 of 2018 Judgment of: CHRISTIE J Date of judgment: 3 November 2022 Catchwords: FAMILY LAW – CHILDREN – Consent Orders - Where the parties have narrowed the issues in dispute by consent orders – Where it is in the best interests of the child for the Court to make those consent orders
FAMILY LAW – CHILDREN – International Travel - Where the remaining issue in dispute is whether the child be permitted to have a passport and travel overseas with either parent – Where the father asserts the mother poses a risk of not returning to Australia – Where risk is present – Where the child be permitted to travel internationally at age 16
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC
Hague Convention on the Civil Aspects of International Child Abduction 1980 Art. 3 and 12
Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children Hague Convention on the Civil Aspects of International Child Abduction
Cases cited: Line & Line (1997) FLC 92-729 Division: Division 1 First Instance Number of paragraphs: 64 Date of hearing: 21 October 2022 Place: Sydney Counsel for the Applicant: Mr Strik Solicitor for the Applicant: Jack Rigg Solicitors Counsel for the Respondent: Ms Gibbons (direct brief) Counsel for the Independent Children's Lawyer: Mr Reeves Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
SYC949 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS AUSTEN
Applicant
AND: MR MANZ
Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
order made by:
CHRISTIE J
DATE OF ORDER:
3 NOVEMBER 2022
THE COURT ORDERS THAT:
1.Until further order, each party, Ms Austen born 1978 and Mr Manz born 1973, their servants and/or agents are restrained from removing or attempting to remove or causing or permitting the removal of the child X born 2009 from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing the name of X born 2009 on the Airport Watchlist and enforce this at all arrival and departure points in the Commonwealth of Australia and maintain the child’s name on the Watchlist until early 2025.
2.On or after X’s birth date in 2025, Ms Austen and/or Mr Manz are authorised to apply for and receive an Australian passport for the child X born 2009 without first obtaining written consent of the other parent. Forthwith upon the issue of a passport to either of the parents, that passport is to be delivered to the Registrar of the Federal Circuit and Family Court of Australia at Sydney and held by the Registrar pending further order of the Court (including a consent order).
3.On or after X’s birth date in 2025 either parent shall be permitted to travel with the child X provided that:
(a)The time the travelling parent takes the child out of the Commonwealth of Australia coincides with the normal time that parent is ordinarily to be spending time with the child and within the gazetted school holidays for NSW, unless otherwise agreed between the parents in writing;
(b)The travelling parent gives the other parent as much notice as possible of their intention to take the child out of the Commonwealth of Australia and in any event will not give less than 60 days written notice of such intention;
(c)The travelling parent gives the other parent an itinerary to include the departure and return dates, the flight details, copies of travel insurance together with evidence of payment, visa documents (if applicable), details of country or countries the travelling parent and the child will be travelling to, the dates on which they will arrive and depart each country (if applicable), an address and telephone number at which the child can be contacted in each country and the names of any other person travelling with the child not less than 60 days prior to the proposed departure date;
(d)The travelling parent gives an undertaking in writing to the other parent that he or she will return the child to the jurisdiction of the Commonwealth of Australia at the conclusion of the proposed holiday time in accordance with the travel itinerary as provided to the other parent pursuant to Order 3(b);
(e)The travelling parent bear all costs (flights, accommodation, insurances, taxes, charges, spending money and the like) incurred on behalf of the child for the trip; and
(f)The Department of Foreign Affairs and Trade does not advise against travel to such a destination and, the proposed destination is party to the Hague Convention and provided the Commonwealth of Australia maintains a High Commission in such a country.
4.At the conclusion of a trip outside the Commonwealth of Australia the child’s passport shall be returned to the Registrar of the Federal Circuit and Family Court of Australia in Sydney within seven days of the child’s return to the country.
5.The father pay the costs of the independent children’s lawyer in the sum of $2,752.50, unless he receives a waiver, such sum to be paid within 60 days.
6.The mother pay the costs of the independent children’s lawyer in the sum of $4,402.50, unless she receives a waiver, such sum to be paid within 60 days.
7.The independent children’s lawyer is discharged.
THE COURT NOTES THAT:
A.Pursuant to s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure “A” attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Austen & Manz has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
The mother filed an application for final parenting orders in relation to the child X born 2009. The parties, with the assistance of their lawyers and the independent children’s lawyer, have been able to come to a shared position on most aspects of the case, narrowing the issues for determination to:
(a)Whether either parent be permitted to cause a passport to be issued for X; and
(b)Whether the mother presents a risk of not returning X to Australia if she be permitted to travel with her.
The parties asked the Court to make final consent orders dealing with all issues (apart from international travel). Following receipt of written submissions I made those orders and indicated I would give short reasons. I do so below.
Background
The parties commenced their relationship in 1998 and separated on a final basis in November 2009. At the time of separation X was under one year old.
In mid-2009 a passport issued in X’s name which was valid until mid-2014. The mother says X did not travel on this passport. It was agreed by all parties there were no stamps in the passport.
In late 2014 the mother commenced a relationship with her current partner Mr B.
From 2009 to 2015 X lived with her mother and spent time with her father as agreed between the parties.
In 2015 the parties attended a Family Dispute Resolution conference in which they agreed to a living arrangement of eight consecutive nights per fortnight with the mother and six consecutive nights per fortnight with the father.
In or around October 2016 X commenced living with the father on a full time basis and spent minimal time with her mother until October 2018.
From October 2018 until November 2020 X spent every second weekend and one half of the school holidays with her mother but otherwise remained in her father’s care.
In November 2020, X commenced living with her mother on a full time basis.
Since April 2022, X has had phone contact with her father which she facilitates herself but has otherwise spent no time with him since November 2020. Time was due to commence at the conclusion of the hearing.
Consideration
Consent Orders
This litigation was commenced on 15 February 2018 and has had a long history. There have been proceedings in the state court and there is a current interim Apprehended Violence Order (“the AVO”) for protection of the child from the father. The consent orders in this Court are not inconsistent with the terms of the AVO.
The parents do not have good communication with one another. They are distrustful.
Ordinarily in those circumstances the Court would not conclude that orders which provide for equal shared parental responsibility and equal time could operate in the best interests of a child.
In determining that I would make orders for equal shared parental responsibility and equal time, as sought by all parties, I have placed significant weight on the following matters:
(a)The Child Impact Report of Ms C, child court expert, dated 27 May 2022;
(b)The views of a child aged 13; and
(c)The agreement of the parties and the independent children’s lawyer (“the ICL”).
Ms C in her report says at [18]:
[X] said that she would like to spend time with her father “tomorrow”, and she asked whether this could be arranged by the Court Child Expert. She expressed that she does not fear her father, or experience any concerns or worries about being in his care. She said that she “mostly” lived with her father, prior to November 2020, and would prefer to live with him half the time. [X] said that there are no practical reasons why she could not live equally between her parents’ residences, because they both live close to her school, and to one another. [X] said that she thinks both of her parents would support her to live in an equal time arrangement.
…
It would not generally be recommended that children and young people live in equal time arrangements when there is such a high level of parental conflict and no trust between the parents… That said, there are sometimes exceptions to this. In [X’s] case, she has matured and developed somewhat over the course of these proceedings… Of significance, the parents appear to agree with [X] that an equal time arrangement is suitable for her.
…
[X’s] urgent need for healing and respite from these legal proceedings eclipses any potential risks or problems [X] living in an equal time arrangement might cause. It would likely be an enormous relief to [X] to know that her parents have reached an agreement.
I have had this evidence firmly in sight in determining to make the consent orders.
In the submissions filed by the ICL Ms Luke said:
It is noted that the Orders proposed to be made protect the child as follows:
Order 17 – restrains the parents from physically disciplining the child or allowing any other person to do so. This protects the child from physical abuse.
Order 18 – restrains the parents from denigrating the other parent or family members in the presence of the child. This protects the child from psychological abuse.
Order 19 – restrains the parents from discussing the Family Law proceedings within hearing of the child. This protects the child from psychological abuse.
Order 20 – restrains the parents form consuming alcohol above the legal limit for diving. This protects the child from the possibility of neglect, inappropriate behaviour or abuse.
Order 21 – restrains the parents from showing copies of the pleadings to the child. This protects the child from psychological abuse.
The reality is that I cannot be confident that the parents (and the child) will not encounter some difficulties implementing these orders. However, it is very important for this child that the proceedings end and that the result is one consistent with her expressed views. The parents have committed to these orders and the certainty and stability that will flow to X from both parents and the child understanding that the orders are final and binding is of considerable value.
Travel
The mother told the family report writer that she had spent approximately two months abroad respectively in 2014, 2015 and 2016. During this time X lived with her father.
On the mother’s evidence, but for restrictions on travel due to COVID-19, the mother would have travelled abroad in 2020 and 2021.
The mother travelled to Country E with Mr B prior to the death of Mr B’s father. The mother says that, following the death of Mr B’s father, Mr B’s mother returned to live permanently in Country D and as a consequence the mother has not travelled to Country E since 2018.
In mid-2022 the mother travelled to Country D to be with her partner and his family until late 2022.
The mother says the father has expressed to X that he intends to take her on a holiday to City F. The father says he has not had such a conversation. It is not necessary for the Court to resolve this dispute.
Applications in respect of international travel for children generally focus on:
(a)Advantages to the child of the proposed travel; and
(b)Risks to the child of the proposed travel including retention.
Those issues arise in this case.
Focusing firstly on the advantages to X of having a passport and being permitted to travel internationally – it is uncontroversial that the experience of travel is one which brings significant benefit to children in terms of family bonding, new experiences and exposure to new cultures. The mother also identifies the value to X of being able to spend time with the family of her stepfather.
The mother said that she and Mr B intend to marry in Country D and a passport will allow X to participate in this ceremony. I will return to this aspect of the evidence below.
Turning then to the potential disadvantages, the primary issue is potential retention of X overseas. On the facts in this case the risk appears to arise from the evidence which suggests that the mother draws considerable support from her partner and his family and that family lives outside Australia. In a similar vein the mother’s evidence confirmed that she has few support persons in Australia, no family support and few concrete connections.
The mother is estranged from her family of origin and her relationship with them could be characterised as adversarial. The mother does not own property in Australia. The mother was asked about friendships in Australia and answered that she was friends with her colleagues.
These factors and the lack of a trusting relationship between the parents cause the father to be seriously concerned that if the mother left Australia with X she may not return with X.
Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 (“the Convention”) acts as a protection mechanism to return a child wrongfully retained in a country that is not that child’s habitual residence.
Mr B has lived in Country E and while his father is deceased he has relatives in Country E. Country E is not a signatory to the Convention and as such the father has expressed concern that if the mother be permitted to travel with the child then she will not return with X. The mother on her evidence has stated that she has been with her partner in Country D not Country E. Country D is a signatory to the Convention and has ratified the Convention pursuant to Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children Hague Convention on the Civil Aspects of International Child Abduction.
As set out previously, the mother has a history of travelling frequently and each time the mother has returned to Australia. However, each time (to date) she has travelled without X. X is her strongest tie to Australia.
I accept the mother’s position that Country D is where she has travelled since 2018. Article 12 of the Convention provides for the recovery of a child who meets the criteria in Article 3 of the Convention. If X were to be retained in Country D the father could approach the Central Authority to apply for her return pursuant to the Convention. That does not dispose of the issue since in the circumstances of this case, I would be concerned that a prolonged absence from Australia while the Convention processes were engaged would, in itself, be damaging for X. It would expose her to conflict between her parents. It would expose her to further litigation. It would place her in a situation where the recent consent orders were not being complied with.
In addition, even if the mother and X were to travel to Country D, that does not discount the possibility that they could travel to a third non-convention country (such as Country E which is easily accessible from Country D) from which return would be demonstrably more difficult. The child court expert understood the mother to represent to her that her overseas travel had been mainly to accompany Mr B to Country E. I accept this may have been prior to 2018.
On their material filed, the parents have engaged in high conflict with one another since their separation. It is unfortunate that each parent is distrustful of the other as outlined by the Child Impact Report writer. It appears that it is from this distrust the father has expressed concern about the mother not returning X to Australia.
That risk is significantly heightened by the evidence at trial which confirmed that Mr B resides overseas for approximately five to six months of each year. It is not fanciful to conclude that, if the mother were permitted to bring X with her when she left Australia, she would have no remaining ties of significance to this country. That increases the risk of retention.
The parents have asked the Court to make orders that effectively ensure an equal shared parenting arrangement. As such, the parents are required to communicate with one another about any decision that affects X.
In the mother’s affidavit she expresses that she does not inform the father of any travel plans as it is “none of his business”. However, in an equal shared parenting arrangement I have to disagree. Historically, when the mother travelled in the past, X would reside with the father where the mother alleges she has no other support in Australia. Therefore, any travel plans of the mother would need to be coordinated with the father to ensure X is cared for while the mother is away and she needs to be contactable by X’s other parent in the event that a serious issue arises for X or the father during the mother’s absence.
The Family Law Act 1975 (Cth) (“the Act”) obliges the Court to consider the best interests of the child in the proceedings including to ensure that children receive adequate and proper parenting to help them achieve their full potential: s 60B(1)(c). In determining what is in X’s best interest, I am required to consider the benefit to her of having a meaningful relationship with both parents: s 60CC(2) of the Act. A meaningful relationship has been construed by the Court in many ways and includes the benefit of travel which both parents, at least theoretically, acknowledge: Line & Line (1997) FLC 92-729. There is a legitimate concern raised by the evidence (and the mother’s oral evidence at trial) that notwithstanding the terms of the recent consent orders she does not value or support X’s relationship with her father. The fact of the mother’s lack of support for X’s relationship with the father increases the concern that the mother may choose to retain X outside Australia.
The mother raised in support of the orders she seeks evidence which she says supports the conclusion that X wants a passport and to travel internationally.
X is 13 years old. The mother’s affidavit annexes a SnapChat conversation between X and her father:
[X]: Hey dad
My mum she’s not gonna sign it because she wants me to have a passport.
Dad I also want a passport
[the father]: I promise everything will be OK xx
[X]: Dad…mum is gonna take it to final hearing.
Why can’t I have a passport
As per the original.
At first blush this interaction appears to indicate the child’s view. The mother relies on this communication in support of the submission that X wishes to travel (and/or desires a passport).
It is clear from this SnapChat conversation that X has insight into the issues in these proceedings. Moreover, it is plain that the mother has indicated to X that she would not settle the parenting matter unless the father agreed to the passport orders she seeks.
It is disappointing that the mother involved X in the parenting dispute between the adults by informing her about the status of the negotiations between the parents and lawyers. It would be plain to X that her mother would like her to travel overseas. The mere echo of this position in a SnapChat conversation is not to be regarded uncritically as representing the views of X. It would not be surprising if she did have a desire to travel but it is necessary to consider her views having regard to the manner in which they have been formed.
What is not plain from the evidence is whether X has an appreciation of what it would mean to be separated from her father and Australia if the mother were to retain her overseas or extend the travel beyond that which is agreed.
It is necessary to consider the mother’s argument that it is in X’s best interests for a passport to issue and for her to be permitted to travel overseas so that she can attend her mother’s wedding in Country D.
The mother filed an affidavit in these proceedings on 6 October 2022. At that stage the proceedings had not settled and the question of overseas travel was a live issue. In that affidavit the mother did not mention any wedding or proposed marriage ceremony as a reason for the grant of a passport. The orders the mother sought in her Amended Initiating Application included an orders that, as far as possible, the time out of the country would coincide with school holidays.
At the final hearing the mother’s lawyers prepared an Outline of Case document. That document referred to a “planned/proposed wedding with mother and her partner in [Country D]”. The mother’s partner was not on affidavit. The ICL emailed Mr B about the issue of a subpoena to the Department of Home Affairs seeking travel records. Mr B responded to that email on 20 October 2022 saying “I have no intentions and never will have for the daughter [X] to ever travel with me nor would I travel, greet or meet with the daughter while I’m abroad” (exhibit 1). The significance of that email would appear to be that the mother has not discussed X travelling to Country D for the purpose of participating in a proposed marriage ceremony with Mr B. The mother explained this by indicating that no discussion had taken place pending the outcome of these proceedings. It seems unusual that a couple who intend to marry would not have discussed the location of their ceremony and which immediate family members will be present.
In a second email from Mr B to the ICL (exhibit 1) he says: “[Ms Austen] hasn’t discussed thoroughly this matter with me nor specifically her intentions with why she insists to get an order for the passport of her 13 year old daughter while there is a dispute about the daughters [sic] custody and family court proceedings between her parents”. This further confirms that if attendance at a wedding in Country D is the purpose of the issue of a passport that is unknown to the proposed groom.
The mother says that it is in the child’s interest to be present at the mother’s wedding. No doubt X may enjoy being present or participating in a celebration although there is a significant difficult history involving Mr B. X and Mr B have not spent time together for some years.
Understandably the mother would no doubt like to have her daughter present at her wedding. That is not the test for this Court. It is within the mother’s power to marry in Australia where there would be no impediment to X’s participation and there is no evidence before the Court as to why a ceremony in one country (at which the proposed groom’s family might attend) is to be preferred to a ceremony in Australia where the mother’s only child could participate. The suggestion that the mother may marry overseas is insufficient basis to put aside the other concerns set out above.
If the mother were to retain X outside Australia it would be disruptive to her relationship with her father. It would also disrupt the relationship with her maternal relatives in Australia with whom she maintains a relationship chiefly facilitated by her father. Retention would pose a risk to her education when she has already commenced high school.
The mother was not able to offer any sort of security to guarantee return or assist the father with costs of travel if X were retained. The mother was unwilling to seek the assistance of her partner in this regard.
Conclusion
In striking a balance between the advantages to X of overseas travel and the risks it poses as outlined above, I raised with the parties and the ICL the prospect of an order which provides that a passport not issue immediately but at some point in the future. The ICL accepted that this proposal had advantages. Consistent with the positions of each parent in this case, neither parent sought such an order, the father preferring that no passport issue and the mother seeking that a passport issue as soon as practicable.
There has been so much change in X’s living arrangements. She clearly has a close relationship with both parents yet the history is that she has lived with one and spent little or no time with the other. It is important that she be given an opportunity to settle into the new arrangement – one which is consistent with her expressed views. It is important that both parents support her in this. It is important that she not be exposed to parental conflict.
The older X is when she travels and the longer she has spent in the parenting arrangement under the new final orders, the less vulnerable she is likely to be to being retained overseas against her will. X will turn 16 in 2025. She will also be in Year 10. I find that the balance is struck by an order allowing her to have a passport from age 16. This will allow her to travel with either parent; it would also allow her to take advantage of any theoretical opportunity for travel associated with her schooling or extra-curricular activities.
The passport, once issued, should be lodged by the father with the Court, to be released upon receipt of a signed and witnessed consent from both parties.
The father sought an Airport Watchlist order. Consistent with the above, I shall make such an order to expire on X’s sixteenth birthday.
If the parties reach an agreement for travel ahead of that time they are free to lodge consent orders with the Court.
As the proceedings are now complete and the parties have final orders disposing of all issues I will make an order discharging the ICL.
Costs
The ICL sought an order for costs. The ICL was engaged to assist the child and the Court in a complicated and lengthy proceeding. It is to the credit of the parties (and the ICL) that the matter substantially resolved and this has resulted in a smaller quantum sought by the ICL.
The father has already paid $1,650. If he were to be ordered to pay half the costs as sought that would require him to pay a further $2,752.50. Absent submissions to the contrary I will make that order. If his financial position warrants he can apply for a waiver from Legal Aid NSW.
The mother was represented at the hearing by a lawyer appointed pursuant to s 102NA of the Act. Such an appointment is not the equivalent of being in receipt of a grant of legal aid for the purpose of s 117(2A)(b) of the Act. The mother is working full time and her application concerned proposed international travel. While I accept that she may not have any assets of significance I will make an order that she meet her half of the costs (unless she qualifies for a waiver).
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 3 November 2022
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