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

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

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: BELLAIRE & MANDIC [2015] FamCA 689
Case: [2015] FamCA 689
Decision Date: 21 August 2015

CaseChat Overview and Summary

In the Family Court of Australia, McClelland J considered an application by the mother for permission to travel overseas with the child, B, born in 2008. The father opposed the application.

The central legal issue before the court was whether to grant the mother's request to take the child to Europe for a specified period, and under what conditions. This involved considering the welfare of the child and the need to provide security for the child's return.

McClelland J applied section 65Y of the *Family Law Act 1975* (Cth) to permit the travel, subject to the mother providing a bank cheque for $30,000 to be held in escrow by the Independent Children's Lawyer. This security was intended to ensure the child's return to Australia. The court also made orders regarding the release and subsequent deposit of the child's passport, and stipulated that the mother facilitate regular contact between the child and the father during the period of travel.

Orders

Orders of the court

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.

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.

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

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.

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.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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