BELLAIRE & MANDIC

[2015] FamCA 689

FAMILY COURT OF AUSTRALIA

BELLAIRE & MANDIC [2015] FamCA 689

FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Overseas travel – Where the mother seeks to take the child to Europe for three weeks – Where the father does not oppose the mother’s application, subject to her paying a security – Best interests of the child – Risk of non-return of the child –– Where the mother has previously paid a security prior to travelling overseas – Capacity of the mother to pay – Mother to pay $30 000 security to be held in escrow by the Independent Children’s Lawyer.

Family Law Act 1975 (Cth) ss 61CA, 61CC, 65Y

Line & Line (1997) FLC 92-729

Sukova & Allen [2011] FamCA 340

APPLICANT: Ms Bellaire

RESPONDENT: Mr Mandic

INDEPENDENT CHILDREN’S LAWYER: Ms Weate

FILE NUMBER: SYC 4409 of 2012

DATE DELIVERED: 21 August 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 03 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Boyle

SOLICITOR FOR THE APPLICANT: Mills Oakley Lawyers

COUNSEL FOR THE RESPONDENT: Ms Spain

SOLICITOR FOR THE RESPONDENT: Pigdon Norgate Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Jennifer Weate & Associates

Orders

1. Provided that by Monday 31 August 2015, the mother provides a bank cheque in the sum of $30 000 made payable to Pigdon Norgate Family Lawyers ("the security") to be held in escrow by the Independent Children's Lawyer, then pursuant to section 65Y of the Family Law Act 1975 (Cth), the mother is permitted to take the child, B born … 2008 ("the child"), for the purpose of travel to Europe leaving 7 September 2015 and returning 26 September 2015.

2. Subject to the mother providing the security, pursuant to Order 1 above, the child's passport is to be released to the mother from the custody of the Family Court of Australia at Sydney.

3. Upon the mother returning to Sydney by 28 September 2015, the security is to be returned to the mother forthwith.

4. In the event the mother fails to return to Sydney by 28 September 2015, the Independent Children's Lawyer is directed to pay the security to the father to use in facilitating the return of the child from outside of the Commonwealth of Australia.

5. Upon the mother's return to Sydney, and within seven (7) days of the mother returning to Sydney with the child, the mother is to deposit the child's passport with the Registrar of the Family Court of Australia at Sydney, which is not to be thereafter released without the written agreement of the parties or further order of the Court.

6. The mother is to facilitate the child contacting the father by telephone or Skype at 5 PM Eastern Standard Time on each Sunday that the child is in Europe, pursuant to Order 1 above, and at such other times as may be agreed between the parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bellaire & Mandic 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 4409 of 2012

Ms Bellaire

Applicant

And

Mr Mandic

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter concerns an Application in a Case filed by the mother on 10 July 2015 in which she sought orders that, pursuant to section 65Y(2) of the Family Law Act 1975 (“the Act”) she be permitted to take the child, B born in 2008 and currently aged 6 (“the child”), on a holiday to Europe from 7 September 2015 until 26 September 2015.

2. The application is made in the context of Consent Orders made on 8 September 2014 whereby the child lives with his mother and spends time with his father. The father indicated, subject to the mother providing a $30 000 security, he did not oppose the mother's application.

Issues

1. The issues are:

   a)Is it appropriate for the Court to make an order pursuant to section 65Y(2)(b)?

   b)Should the mother be required to lodge security prior to embarking on an overseas travel?

   c)If so, in what amount?

Submissions

1. The mother argues that the requirement for her to lodge security in the sum of $30 000 would be oppressive and was effectively being used by the father as a form of control. She noted that, in the past, the same approach by the father had forced her to cancel plans to travel on an overseas holiday with her son.

2. The mother noted that she has employment and a large family network in Australia, whereas she has no family in Europe and owns no property there nor has she a business or prospects of obtaining employment in Europe. The mother also referred to the fact that she took her son to France on holiday in September of last year and returned to Australia with him at the end of that holiday. The mother submitted that she is therefore not a flight risk.

3. The mother also expressed concern that imposing the requirement for her to provide a security would establish a precedent that would make it extremely difficult, or even impossible, for her to undertake overseas travel in the future. This was particularly the case if it was necessary for her to approach the Court for orders, pursuant to section 65Y(2) of the Act, every time she wanted to travel.

4. The mother was concerned, therefore, that acceding to the husband's request for the security would entrench a precedent that would affect her freedom of movement in the future.

5. The father, on the other hand, argued that the wife does not own any property in Australia and that she has previously lived in France.  The father argued that, since their child's birth, the mother has shown an interest in matters relating to France and the French language that borders on the obsessive. In those circumstances, he argued, he was entitled to seek some comfort that the mother would return to Australia with their child.

6. The Independent Children's Lawyer (“the ICL”) argued that one significant incentive for the mother not to return to Australia was the degree of hostility in the relationship between the mother and the father and accordingly, submitted that a security of $30 000 was appropriate.

7. Further, the ICL referred to the precedent established in Orders made by Loughnan J on 8 September 2014 whereby the mother was required to provide a security in the sum of $30 000 prior to undertaking travel with the child in September 2014.

8. The ICL advised the Court that the ICL was prepared to hold a bank cheque made payable to Pigdon Norgate Family Lawyers, in escrow, pending the mother's return from holidays with the child.

Consideration

1. In deciding this matter, the Court is required to have regard to the best interests of the child.[1] Section 60CC of the Act sets out a number of factors that the Court is required to consider in determining what is in a child’s best interests.

   [1] Section 60CA of the Family Law Act 1975 (Cth).

2. The Court has had regard to those factors generally and has placed greatest weight on section 60CC(2)(a), which relevantly provides that a primary consideration for the Court is "the benefit to the child of having a meaningful relationship with both of the child's parents". Clearly, if the child was not to return to Australia, the child's ability to maintain a meaningful relationship with the child's father would be adversely affected.

3. Also of relevance are paragraphs (d) and (e) of section 60CC(3) which requires the Court to have regard to the “likely effect of any changes in the child's circumstances”, including separation from either of his parents and any “difficulty and expense of a child spending time with and communicating with a parent”. Again, if the child was not returned to Australia, there would be a significant change in the child's life which would involve separation from his father and create circumstances where it was difficult for the child to spend time with and communicate with his father.

4. The Court notes the mother's stated intention to return to Australia on 26 September 2015 and there was nothing before the Court to challenge the mother’s sincerity or credibility. Nevertheless, the test to be applied in these circumstances is an objective one which requires an evaluation of the risk of non-return and the consequences if that occurs.[2]

   [2] See Gin & Hing [2010] FamCA 617 at [56].

5. The Full Court in Line & Line (1997) FLC 92-729 set out the factors to consider in evaluating the risk of non-return. [3] They are:

   (1)The existence or otherwise of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here);

   (2)The existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues);

   (3)The existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there); and

   (4)Whether the country of travel is a signatory to the Hague Convention.

   [3] at 83,846.

6. A significant factor in this case is that France is a party to the Convention on the Civil Aspects of International Child Abduction, signed at the Hague on 25 October 1980 (“the Hague Convention”). This would facilitate a recovery action if the mother did not return to Australia with the child in accordance with her representations to the Court. Nevertheless, the father is entitled to some comfort that his son will be returned and it is appropriate to require the mother to provide a security.

7. In determining that the amount of $30 000 is appropriate, I have again been guided by the principles set out in Line & Line (supra).  In that case, the Full Court said that the two fold purpose of such a security is to:

   (1)provide a sum which will realistically entice the person removing the children to return; and

   (2)provide a sum to adequately provision the party left in Australia to take action and proceedings in Australia and overseas in an endeavour to obtain the return of the children.[4]

   [4] Line & Line (1997) FLC 92-729 at 83, 845.

8. On the facts before it, the Full Court in Line & Line (supra) decided that a security of $20 000 was appropriate. It is of note that Line & Line was decided in 1997. It is also of note that the proposed travel in that case was to the United States which was also a signatory to the Convention.

9. I have also had regard to the case of Sukova & Allen [2011] FamCA 340 where Cronin J indicated that any security imposed needed to strike a balance between providing sufficient comfort to the non-travelling parent but, at the same time, not be so high that it would make travel prohibitive.[5]

   [5] Sukov and Allen [2011] FamCA 340 at [46].

10. In that context, the issue of capacity to pay is relevant. In this case, it is of note that the mother recently received an inheritance in excess of $200 000.[6] In all the circumstances, therefore, the Court is satisfied that the mother has the capacity to obtain funds to pay the security, without precluding her from undertaking the overseas travel as planned.

    [6] Exhibit H2.

11. As noted, one significant risk factor identified by the ICL was a potential desire by the mother to escape the intensity of disputation that has been a feature of the Family Court proceedings between her and the father. If that dispute is resolved, then it would remove that as a risk factor. Accordingly, the precondition of paying the security that has been required in this case should not be regarded as a precedent that will apply indefinitely.

12. For all of the above reasons, I make the orders as set out at the beginning of this judgment.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 21 August 2015.

Associate:

Date: 20.08.2015.