BARNSTABLE & SWINTON

[2014] FamCA 511

FAMILY COURT OF AUSTRALIA

BARNSTABLE & SWINTON [2014] FamCA 511

FAMILY LAW – CHILDREN – Best Interests – Overseas travel – Application on short notice for variation of final orders – Where final orders provide that the mother may take child overseas during specified school holiday periods – Where mother seeks permission to take child overseas prior to school holiday period – Where father does not consent – Where father places child on Airport Watch List – Where it would be in the child’s best interests to allow overseas travel as proposed by the mother – Orders made allowing proposed overseas travel – Orders made for child to be temporarily removed from Airport Watch List – Orders made for father’s costs.

Family Law Act 1975 (Cth) ss 62B, 65DA(2), 117(2A)

APPLICANT: Ms Barnstable

RESPONDENT: Mr Swinton

FILE NUMBER: SYC 5996 of 2009

DATE DELIVERED: 20 June 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 20 June 2014

REPRESENTATION

FOR THE APPLICANT: Mr Tilley

SOLICITOR FOR THE APPLICANT: Tilley Family Law and Mediation

FOR THE RESPONDENT: Ms Joel

SOLICITOR FOR THE RESPONDENT: Barkus Doolan

Orders

IT IS ORDERED

1. That the child J born … 2003 be temporarily removed from the Airport Watch List forthwith and be reinstated on the Watch List on 14 July 2014.

2. That the mother be permitted to travel to Country 1 with Z departing on 21 June 2014 and returning on 14 July 2014.

3. That the mother pay to the father’s solicitors the sum of $400 by way of costs within 30 days from the date of these orders.

4. That pursuant to Sections 65DA(2) and 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Barnstable & Swinton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5996 of 2009

Ms Barnstable

Applicant

And

Mr Swinton

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application in relation to a child Z, (“the child”), born in 2003 and now 11 years old. His parents are Mr Swinton, (“the father”), and Ms Barnstable, (“the mother”).

2. The mother asks the Court to allow her to travel with the child to Country 1 in the period leading up to and including the forthcoming school holidays.

3. The parties engaged in a defended hearing before Ryan J in 2011 and orders were made in relation to the child on 1 July 2011 and 15 July 2011. Those Orders provide for the mother to travel with the child during specified school holiday periods. 

4. The holidays commencing on 27 June 2014 fall into that category.

5. The mother gave the requisite notice to the father on 28 April 2014. However, she did not tell the father that she proposed to take the child out of school for a week. That information was only given to the father on 8 June 2014, some 13 days before the proposed departure. 

6. The father does not consent to the child being taken out of school and he has caused the child’s name to be placed on the Airport Watch List. 

7. The mother was advised by a letter dated 17 June 2014 from the father’s solicitors that the father did not consent. The father brought an application filed on 19 June 2014 to restrain the mother from taking the child overseas without his consent and that application is listed on 21 July 2014.

8. The mother applies on short notice, the application being filed today and heard today, for a variation of the Orders of July 2011. The mother has filed no affidavit in support of her application but relies upon the father’s affidavit in support of the watch list application. The solicitor for the mother sought leave to adduce oral evidence in her case.

9. The father lives in Country D and is not present in court today. He is represented by his solicitor. In circumstances where the solicitor for the father could not obtain instructions from him in relation to her oral evidence or in relation to matters for cross-examination, I do not propose to allow oral evidence to be called.

10. It is submitted on behalf of the mother that the father delayed in responding to her proposal between 8 June, when he received her proposal, and 17 June, when he responded. I do not accept that any criticism can be levelled against the father for that. 

11. It is further submitted on behalf of the mother that there is no suggestion of flight risk or that she will not return with the child, that no concerns are expressed by the father about the child’s welfare and no reasons are given by the father for his decision to refuse his permission. In my view, that submission overlooks the onus of proof, which rests squarely on the applicant, in this case, the mother.

12. The Orders which are in question here were made after a defended hearing. The reasons for judgment are not available. I am not assisted by the affidavit evidence to know why it was that the Orders were made in the form that they were, but there is no doubt that orders of the Court exist which the mother appears perfectly willing to breach. I strongly disapprove of the mother’s actions in making the arrangements that she did without the father’s consent. Having regard to the fact that she complied with the notice provisions in the Orders, I must conclude that she was well aware that what she was doing was in breach of those Orders.

13. The mother wrote a letter to the father’s solicitors on 19 June in which she said, inter alia, “I will not be changing my flights to and from [Country 1], I will be departing Sydney on Saturday 21 June 2014 and returning to Sydney Sunday 13 July 2014 as planned, acknowledged and accepted.” I do not accept that the father either acknowledged or accepted the mother’s proposal that she would take the child out of school and I do not accept that that proposal was communicated to him until 8 June 2014.

14. However, my disapproval of the mother’s actions is not relevant here. The child’s best interests are paramount. On the one hand, there are advantages to the child of spending time with his maternal grandfather who, according to the mother’s letter of 19 June 2014, is terminally ill. The mother says in the letter that this will be the child’s last chance to see his grandfather. I accept the submission of Mr Tilley that the child will be distressed if the holiday which his mother has told him will be taking place has to be cancelled at this stage. That is yet another of the mother’s actions of which I strongly disapprove.

15. There is no evidence from the father about the disadvantages to the child of missing a week of school, but there is also no evidence from the mother which seeks to address that issue. 

16. Doing the best I can and balancing the adverse effect on the child of missing school against the advantage of his seeing his ill maternal grandfather and being distressed if he is not permitted to go, I propose to make orders that will allow the child to travel to Country 1 on 21 June 2014. 

17. However, I also propose to make orders that will ensure that this situation is not repeated, and the removal from the Airport Watch List will be temporary and will be reinstated on 14 July 2014.

18. The solicitor for the father makes an application for costs of the appearance in Court today. I am conscious of the fact that I have no evidence before me of the relative financial positions of each party, but each party was in a position to file that evidence if he or she thought it was appropriate. 

19. In relation to the factors set out in section 117(2A) of the Act I am placing strong reliance upon the conduct of the mother. She knowingly undertook a course of action which she knew was contrary to court orders and when challenged by the father to comply with the Orders said in writing that she would not do so. It was only because the father took appropriate action in having the child’s name placed on the Airport Watch List that the mother was prevented from a serious breach of orders.

20. I consider that the mother should make a contribution towards the father’s costs in the sum of $400.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 20 June 2014.

Associate: 

Date:  20 June 2014