BENDON & BENDON
[2018] FamCA 722
•12 September 2018
FAMILY COURT OF AUSTRALIA
| BENDON & BENDON | [2018] FamCA 722 |
| FAMILY LAW – CHILDREN – Parenting – interim orders – where final orders have been extant for some years which restrict the mother’s time with the children of her relationship with the father – where the mother wants to re-open those orders – where her application is for a family report which is resisted by the father – s 11F order made. FAMILY LAW – PROPERTY – where final orders relating to property transfer are still not finalized. Orders made under s 106A of the Act. FAMILY LAW – CHILDREN – Parenting – internal travel opposed by wife. Orders made. |
| Australian Passports Act 2005 (Cth) Family Law Act 1975 (Cth) |
| Gin and Hing [2010] FamCA 617 approved in Lorde and Chu [2015] FamCAFC 3 Payne [2001] EWCA Civ 166; [2001] 2 WLR 1826 |
| APPLICANT: | Mr Bendon |
| RESPONDENT: | Ms Bendon |
| FILE NUMBER: | DGC | 672 | of | 2014 |
| DATE DELIVERED: | 12 Septemer 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 4 September 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms McGregor |
| SOLICITOR FOR THE APPLICANT: | Fiona R McGregor |
| COUNSEL FOR THE RESPONDENT: | Mr Levine |
| SOLICITOR FOR THE RESPONDENT: | Allan McMonnies |
Orders
Pursuant to s 106A of the Family Law Act 1975 (Cth) (“the Act”) a registrar is authorised to sign a transfer of land in respect of the real property at FF Street, I Town in the State of Western Australia and being the whole of the land described in Certificate of Title Volume … Folio … in the name of the wife (Ms Bendon) to give effect to the orders made by this court on 21 April 2015 such that the said property be transferred solely to Mr Bendon (“the husband”).
That the registrar is authorised under s 106A of the Act to sign any other document required from the Land Titles Office in the state of Western Australia to give effect to the said orders and to transfer the real property to the husband.
That the registrar shall be satisfied that it is appropriate to sign such documents upon receiving an affidavit from the solicitor for the husband confirming that the documents are so required.
That the registrar is not required by these orders to further consult with either the wife or any solicitor acting on her behalf.
Pursuant to s 11 of the Australian Passports Act2005 (Cth), the relevant Minister may issue passports for the children D born … 2005, E born … 2007 and F born … 2009 upon the application of the father of the children Mr Bendon without further consultation with the mother of the children (Ms Bendon), the father having sole parental responsibility pursuant to an order of this court to make such applications as are necessary.
Pursuant to s 65Y(1) of the Family Law Act 1975 (Cth) and to the extent necessary to say so, the father of the said children may take them from the Commonwealth of Australia to travel internationally.
That no less than one month prior to the departure of any international travel, the father is to provide to the mother a comprehensive itinerary for the children’s travel including the dates of departure and return to the Commonwealth of Australia and the various places at which they will be residing during their absence.
Upon the return of the children to Australia, the father do all things necessary to make up time lost by the children with their mother under the orders made on 26 April 2017.
That the amended application in a case filed by the father on 19 July 2018 is otherwise dismissed.
That paragraph 1 and paragraphs 2(a), (c) and (d) of the mother’s application in a case filed 2 August 2018 are struck out.
Pursuant to s 11F of the Family Law Act 1975 (Cth), the father and the children (and if the family consultant considers it appropriate and necessary, the mother) attend upon a family consultant in Perth, Western Australia or such other place as may be arranged by the Child Dispute Services Director of the Melbourne Registry of the Family Court of Australia for the purposes of ascertaining the views of the children about the appropriateness of the extant arrangements for supervised time between the mother and them and whether there is a need to contemplate a reconsideration of face to face time between the mother and the children.
Any appointed family consultant under these orders is requested to advise of any negative impacts upon the children of an alteration to the existing orders with particular emphasis on the proposed face to face orders of the mother.
That the application in a case filed 2 August 2018 is otherwise dismissed.
That by 4.00pm on Friday 28 September 2018, the mother file and serve an initiating application setting out with particularity the orders she seeks.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bendon & Bendon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: DGC 672 of 2014
| Mr Bendon |
Applicant
And
| Ms Bendon |
Respondent
REASONS FOR JUDGMENT
The substantive parenting proceedings between Mr Bendon (“the husband”) and Ms Bendon (“the wife”) were concluded after a contested hearing in the court in 2015 by Johns J. By those orders, the three children of the parties’ relationship D, E and F lived with the husband. The wife has restricted contact under supervision. In addition, the husband had, and retains, sole parental responsibility for all major long term issues for the children.
There were also property orders made separately, the details of which are referred to below.
In April 2017, proceedings occurred again and further orders of a parenting nature were made. The court file shows that there have been other proceedings than those just mentioned in relation to the parties’ dispute which began in 2014.
In August 2018, further disputes arose between the parties culminating in the interlocutory application before me on 4 September 2018.
The applications
First in time was the husband’s application filed 19 July 2018 seeking:
(a)An order under s 106A of the Family Law Act 1975 (Cth) (“the Act”) to have the registrar sign various documents to enable the 2015 orders to be implemented;
(b)That passports be issued for the children without the requirement that the wife provide her consent; and
(c)That the children be permitted to travel internationally for holidays in December-January of the forthcoming school holidays.
The wife who is represented by counsel, did not consent to any of those orders.
The wife’s application in a case was filed on 2 August 2018 and it sought the following orders:
(a)That the father be reprimanded for failure to comply with orders made on 2 December 2015;
(b)That the wife be able to seek an amendment of the final parenting orders of 2017 such that her time with the children be increased and that an updated family report be ordered.
The husband who was represented by his solicitor, did not agree to any of those orders.
Counsel for the wife did not press the first of the orders mentioned above conceding that the appropriate application should have been one relating to contravention of court orders. He also conceded that part of the second order he sought on behalf of the wife did not need to be pressed because there was already an extant order.
The main focus of the wife’s application concerned the production of a family report. It was noticeable (and conceded by counsel for the wife to be something of a problem) that there was no initiating application extant. As such, there could be no pending trial of substantive issues. Absent that, a family report would be, in my view, an unnecessary use of court resources. As I understand the husband’s position, he is opposed to any alteration to the status quo including having the children involved in any further reporting type conferences having regard to the finalisation of matters in 2017 and what the children have endured as a result of their parents’ dispute over the years. There is undoubtedly a desire of the wife to move on from the restrictive nature of the orders that currently stand and her counsel observed that the children have grown older and have a good relationship with her when the contact arrangements have occurred and she draws support from the supervisor of the contact centre in Western Australia.
In an environment where I was unable to test any evidence and much of the material is old, the most critical question is how the children would see an alteration of the status quo of the nature contemplated and promoted by their mother including the very question of whether or not they want to go through the process of such a reconsideration. Whilst the views of children (s 60CC(3)) are not the only matters that regulate best interests principles, these children are now almost 13, 11 and 9 years of age. They have been through a lot and it is important how they would view a reopening of parenting issues even in some limited way such that their relationship with their mother might be different from what it currently is. Section 11F of the Act provides an opportunity for the court to understand how children see the dispute between their parents. A family consultant would have an opportunity to read how the contact centre has observed the nature of the relationship between the children and the respective parents (but particularly the wife and the children) whilst at the same time having the substantive proposals of the wife.
Section 11F of the Act empowers the court to make an order of its own initiative. Section 11E provides that before exercising that power, the court may seek the advice of experts as to what are the appropriate needs of the children. In my view having regard to some of the comments that I have read from the supervisor of the children’s time with the wife, the court needs an expert to advise it of how the children have perceived the parental conflict and to indicate whether they have any interest in expanding their own relationship horizons with their mother.
The husband and the children currently reside in Western Australia and I propose through the Child Dispute Services Director in Melbourne to request the appropriate administrative officer of the Family Court of Western Australia to endeavour to set up a conference consistent with s 11F or something similar so that this court can have some understanding of whether there is some substance to the wife’s desire to expand the relationship with the children or whether they are simply content for the status quo to remain. I stress that there are many other issues to be contemplated including whether there is any basis to reopen the orders but that is a matter for the court.
Accordingly, as conceded by counsel for the wife, the court needs a lot more information than it currently has. The material provided attached to an affidavit by the supervisor of the children’s contact should be seen by any contemplated expert as background before meeting the children but so too, that expert should read the judgments of Johns J and what was ordered in 2017 as the complexities of this case are large.
Accordingly, I propose to make an order under s 11F of the Act and the wife is to file an initiating application (rather than an application in a case) and the matter can be brought back before a registrar for contemplation of what management is then needed.
The husband’s application
The court in 2015 made orders that the property in I Town in Western Australia belong to the husband and that the wife do all things necessary to give effect to that order. It is common ground that the husband was not diligent in implementing that order and conceded that the wife had signed the necessary documents but that he had problems with a mortgagee.
Counsel for the wife conceded that the appropriate order was to extend time but in my view that is unnecessary for two reasons. First, it is not suggested that the wife has been non-responsive to her obligations. Secondly, it is not suggested that any order for costs should be made against the wife in relation to the present application. One might then presume that the wife would shrug her shoulders metaphorically and sign a new transfer and other documents but her counsel candidly conceded that she had declined to do any of that. There is a stand-off and accordingly, the appropriate course of action to ensure the implementation of the orders is the use of the powers in s 106A of the Act for a registrar to sign any necessary document to give effect to the earlier orders. Apart from anything else, that would obviate the necessity for the wife to be further involved but at the same time, the registrar can accept the word of the solicitor for the husband in affidavit form that various documents are necessary.
The passports issue
As I have already indicated, the husband wants to take the children overseas on a holiday to Country FF at the forthcoming school holidays and this has been foreshadowed for some time. Notwithstanding he has sole parental responsibility, to avoid any argument about where the passports should be issued, he made the application to which I have referred. The wife’s position was that no passports should be issued but counsel for the wife properly conceded that she had little to say about the matter. What she did have to say was more about the holiday issue.
Before turning to the holiday issue, it seems logical for the children to have a passport and to the extent necessary to say so under the Australian Passports Act2005 (Cth), the court authorises the husband to make an application and the wife’s consent is dispensed with.
The holiday
The husband wants to take the children to Country FF where he has relatives. The wife’s position was to oppose that on the basis of a lack of information. In my view, that absence of information can be rectified by requiring the husband to provide her with an itinerary in sufficient time before the proposed holiday to enable her to seek injunctive orders if inadequate information is provided. The solicitor for the husband did not disagree.
The second issue raised by the wife was the possibility that the husband “may disappear”. There is no evidentiary basis for her fear. In her affidavit, the wife said that she wanted to be sure that the children did not miss any time at school. The proposed period of time is largely school holiday time in any event so that argument has little merit.
The main objection by the wife can be seen in paragraph 15 of her affidavit in which she said that the father’s lack of compliance with the existing orders gave rise to her having little confidence that he would facilitate her time particularly while they were on holidays. That too can be overcome by a specific order that makeup time be provided and I shall order that accordingly.
The wife too maintains that the husband has an outstanding child support obligation to her but having regard to that being an administrative matter, I do not consider it is appropriate for me to require that issue to be resolved prior to any international travel bearing in mind the orders that were made by Johns J in 2015. Finally, the wife sought that the husband pay a bond of $10,000 to be held by the court until the children return. The purpose of bonds traditionally has been to enable a parent to go to the relevant country where the children have been detained and to enable the parent to participate in the legal process to ensure the return of the children. These children will be going to a country which observes the laws similar to Australia and in particular international law. As such, the relevant convention applies and there is little basis for a security bond being imposed as the relevant central authority will take responsibility for the enforcement of the children’s rights. I do not propose that any bond should be ordered.
The real question in this case is whether or not the children should have the benefit of a holiday travelling internationally even if it does have some impact upon their relationship with their mother over the limited school holiday period ahead.
It is trite to say that decisions about international travel are always difficult because no-one can foretell what might happen and the court very much relies upon assessing the truthfulness of the applicant seeking to go. In other words, it is a leap of faith on the part of the court exercising the discretion (see Gin and Hing [2010] FamCA 617 approved in Lorde and Chu [2015] FamCAFC 3).
The application to be permitted to travel is governed by the exercise of the court’s powers provided by Part VII of the Act. As such, best interests principles are the paramount consideration although not the only one. Parents’ views must be taken into account. Here, the husband says that it is good for the children to meet relatives and to enjoy the holiday break and the wife’s position is that the husband does not comply with obligations. In my view there is more substance to what the husband says here based on the evidence presented. In any event, where there is a clash of the interests of the parents, the interests of the children must prevail.
None of the factors set out in s 60CC of the Act which guide the court in its deliberation as to what is in the best interests of the children are helpful here. All of those matters have been trawled over in the substantive proceedings both in 2015 and the later proceedings in 2017. Nothing in the father’s evidence would suggest that he does not have the best interests of the children at heart nor is there any suggestion other than that the belief of the wife, that he will not return. The children must therefore be seen to be likely to benefit from such a trip particularly during a holiday period.
As Thorpe LJ observed in Payne [2001] EWCA Civ 166; [2001] 2 WLR 1826, time has moved on from those days when international travel was less common. It is particularly important here for these children to have as regular a life as possible and in my view that must include international travel. The court should only intervene if there is concern that the welfare of the children is to be prejudiced by some action on the part of the parent who has control of them at the time. No such evidence appears here.
Accordingly, the husband is permitted to travel internationally with the children during the period of 10 December 2018 and 30 January 2019. However, appropriate orders are necessary to ensure that the wife is made aware of the itinerary and details but also that there is some make-up time in the event that her time with the children in that period is prejudiced.
Orders are made accordingly.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 12 September 2019.
Associate:
Date: 12 September 2018
0