Baumann & Tanev
[2022] FedCFamC1F 943
Federal Circuit and Family Court of Australia
(DIVISION 1)
Baumann & Tanev [2022] FedCFamC1F 943
File number(s): MLC 11841 of 2021 Judgment of: MCNAB J Date of judgment: 5 December 2022 Catchwords: FAMILY LAW – PARENTING AND PROPERTY – RELOCATION – Interim Orders - Where the mother seeks to travel to Country B with the children – Adequacy of security to ensure return – Interim orders in relation to schooling – Where Country B is not a signatory to the Hague Convention. Legislation: Family Law Act 1975 (Cth) s 60CC(1), (3) Division: Division 1 First Instance Number of paragraphs: 15 Date of last submission/s: 30 November 2022 Date of hearing: 21 – 25 November 2022 Place: Melbourne Counsel for the Applicant: Ms O’Connell Solicitor for the Applicant: Berry Family Law Counsel for the Respondent: Ms Ben-Simon Solicitor for the Respondent: Tyler Tipping and Woods ORDERS
MLC 11841 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BAUMANN
Applicant
AND: MR TANEV
Respondent
order made by:
MCNAB J
DATE OF ORDER:
5 DECEMBER 2022
THE COURT ORDERS THAT:
1.The Mother and Father have equal shared parental responsibility for the children, X born 2014, Y born 2017 and Z born 2019 ("the children").
2.The children live with the Mother.
3.The children spend time with the Father as follows until further order:
(a)In 2022, in a two week rotation until the Christmas holidays:
(i)In Week 1, from 7:55am on Thursday to 6:00pm on Friday.
(ii)In Week 2:
A.All the children from 7:55am to 6:00pm on Thursday.
B.All the children from 7:55am to 6:00pm on Friday, at which time Z shall be returned to the Mother's care.
C.X and Y remain in the Father's care until 2:00pm on Sunday.
(b)During the Christmas holidays commencing in 2022 in a two week rotation:
(i)In Week 1, from 7:55am on Thursday to 6:00pm on Friday.
(ii)In Week 2, from 7:55am Friday to 2:00pm on Sunday.
(c)During Terms 1 and 2 in 2023:
(i)In week 1, from the conclusion of school (or 3:20pm on a non-school day) on Friday to the commencement of school (or 9:00am on a non-school day) on Monday; and
(ii)In weeks 1 and 2, from the conclusion of school (or 3:20pm on a non-school day) on Wednesday to 6:00pm on Thursday.
(d)Notwithstanding the above and until further order, the children spend time as follows:
(i)From 3:00pm on 24 December to 3:00pm on 26 December with the Mother for Christmas.
(ii)From 3:00pm on 6 January to 3:00pm on 8 January with the Father for Christmas.
(iii)On each child’s birthday as agreed in writing between the parties, and in default of agreement:
A.If the children would not otherwise spend any time with the Father, with the Father from the conclusion of school (or 3:30 pm if a non-school day) until 7:00 pm.
B.If the children would not otherwise spend any time with the Mother, with the Mother from the conclusion of school (or 3:30 pm if a non-school day) until 7:00 pm.
(iv)On the Father’s birthday if the children would not otherwise spend time with him, as agreed in writing between the parties and in default of agreement from the conclusion of school (or 3:30 pm if a non-school day) until 7:00 pm.
(v)On the Mother’s birthday if the children would not otherwise spend time with her, as agreed in writing between the parties and in default of agreement from the conclusion of school (or 3:30 pm if a non-school day) until 7:00 pm.
(e)As otherwise agreed between the parties in writing.
4.The children be permitted to contact the party with whom they are not spending time by telephone, Facetime, Skype, text message or similar services at any reasonable times in accordance with the children's wishes.
5.The Mother be permitted to travel with the children to Country B between the dates of 25 March 2023 to 13 April 2023 and the children's time with the Father be suspended during that time, provided that:
(a)The Mother provide the Father with a full itinerary of the children's travel arrangements and contact details during that travel.
(b)In the event that the Mother does not return with the children by 13 April 2023 ("the Return Date") for a reason other than airline delay, health or some other emergency directly affecting her and which is beyond her control:
(i)She transfer to the Father within 7 days of Return Date the property situate at C Street, Suburb D more specifically identified in Certificate of Title Volume … Folio ....
(ii)If the Mother fails to transfer the Suburb D Property to the Father within 7 days of the Return Date, the Father's solicitors be authorised and are hereby appointed under Section 106A of the Family Law Act to sign such documents as are necessary on behalf of the Mother to transfer C Street to the Father.
(c)The Mother charges C Street in favour of the Father to secure her compliance with the obligation to return the children to Australia under these Orders, and the Father be permitted, at his sole expense, to lodge a caveat over C Street upon the Mother leaving Australia with the children provided that he withdraw it at his sole expense within 7 days of the Mother returning the children to Australia.
(d)Within 60 days of the date of these Orders, the parties do all acts and sign all documents required to register these parenting orders with the High Court of Country B, or other Court as they are advised has jurisdiction, at the parties' joint cost.
(e)Upon the children's return from Country B to Australia, the children spend make up time with the Father by extending the time they spend with the Father in Week 2 identified at paragraph 3.3 hereof to conclude at 9:00am on Saturday, until the number of nights the children miss with the Father in Country B is made up.
6.If the children's private school fees for 2023 at E School in Suburb D are overdue by more than 60 days, the Mother be permitted to terminate their enrolment in that school and enrol in them in a public school.
7.Pending further orders, the parents be restrained by injunction from discussing or mentioning the mother’s application to relocate to Country B or other parenting issues which are the subject of conflict in the presence of the children or permitting third persons to do so.
8.Neither parent shall disparage the other in relation to parenting choices or their character in the presence or hearing of the children.
AND THE COURT NOTES:
A.The Father has committed to paying the children's private school fees at E School in Suburb D for the full year 2023.
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 Baumann & Tanev has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McNab J:
The trial in this proceeding concluded on 25 November 2022 after a five-day hearing.
At the conclusion of submissions, issues were raised regarding interim arrangements for the children until judgement was delivered. The mother is seeking final orders to relocate to Country B with the children. The parties have three children, X, Y and Z.
Submissions were made regarding arrangements for any overseas travel for the children with the mother. Whilst it was not raised in the course of the hearing, in the course of closing submissions the issue was raised. The mother sought orders permitting her to travel to Country B with the children subject to providing security in the form of the husband being able to charge the family home and be entitled to take ownership of the home in the event that the mother failed to return to Australia with the children in accordance with orders. Country B is not a signatory to the Hague Convention on child abduction. The father made submissions to the effect that he would agree to the mother travelling to Country B subject to her providing security as she had offered but also subject to her agreeing to withdraw her application to relocate to Country B on a permanent basis with the children.
The parties were asked to address the question make up time for the father in the event that the mother did travel country B with the children and to address orders regarding the schooling of the children for 2023. Christmas arrangements were also asked to be addressed.
The parties were requested to confer and submit minutes of proposed orders which dealt with the matters raised. The mother has submitted a proposed minute of interim orders. In my view that scheme of orders adequately addresses an increase in time for the father and with the children and makes arrangements for the Christmas holidays.
Order five of the orders submitted by the mother provides:
5.The Mother be permitted to travel with the children to [Country B] between the dates of 25 March 2023 to 13 April 2023 and the children's time with the Father be suspended during that time, provided that:
5.1The Mother provide the Father with a full itinerary of the children's travel arrangements and contact details during that travel.
5.2In the event that the Mother does not return with the children by 13 April 2023 ("the Return Date") for a reason other than airline delay or health emergency:
5.2.1She transfer to the Father within 7 days of Return Date the property situate at [C Street, Suburb D] more specifically identified in Certificate of Title Volume […] Folio […].
5.2.2If the Mother fails to transfer the [Suburb D] Property to the Father within 7 days of the Return Date, the Father's solicitors be authorised and are hereby appointed under Section 106A of the Family Law Act to sign such documents as are necessary on behalf of the Mother to transfer [C Street] to the Father.
I will make orders in those terms subject to order 5.2 providing “in the event that the mother does not return with the children by 13 April 2023 (“the return date”) for a reason other than airline delay, health or some other emergency directly affecting her and which is beyond her control”. I make that change to the orders sought on the basis that there may be some emergency situation that genuinely prevents the mother from returning to Australia by 13 April 2023 other than health or airline delay.
The orders also make provision for these orders to be registered with the High Court of Country B or other court as they are advised has jurisdiction at the parties’ joint expense.
In my view that order is appropriate given that the orders to the mutual benefit of both the parties and the parties have been provided with an estimate of fees and such fees were not prohibitive.
In my view it is appropriate to make the orders in the terms sought by the mother subject to the modifications referred to above. It is in the best interests of the children for them to travel to Country B with their mother for the special occasions of the mother's brother's wedding and another family wedding and to enjoy that family occasion with the extended family. The enjoyment and benefit derived from that should not be conditional on her withdrawing her application to relocate to Country B with the children.
The risks of the children not returning from Country B are ameliorated by the substantial security that has been offered by the mother which is of genuine value given that the family home is the major asset worth about $1 million. The arrangements for the make-up time will ensure the father continues to enjoy his relationship with his children. The father will be able to communicate with the children while they are in Country B.
In relation to the schooling orders sought by the mother, the father has stated in open court that he intends to pay the school fees at the private school that they are currently attending for 2023. The father has sought orders that the mother pay half the school fees. The mother submitted that she cannot afford to do that and asked for orders that she be permitted to remove the children from the private school and enrol them in the public school.
The court orders will note that the father has committed to paying the children's private school fees at the E School in Suburb D for the full year of 2023. I will make orders as sought by the mother save that the mother may be permitted to terminate their enrolment in that school and enrol them in public school if the school fees are overdue for more than 60 days.
Given that there was substantial agreement reached about the terms of any security to be provided and the father had quite properly agreed to the wife and children travelling subject to conditions that were substantially agreed, I have not referred to each of the matters in s 60CC (1) and (3) of the Act. As noted above, I do think that this travel will be enjoyed by the children and provide benefits through connection to wider family there.
I have included an injunction preventing the parents from discussing or mentioning the mother’s application to relocate to Country B. They are too young to be involved in the adult issues which arise in this proceeding. Those orders are in accordance with the recommendations of the Family Report Writer which particular recommendation I adopt.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McNab. Associate:
Dated: 5 December 2022
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