BERTRAM & THORPE
[2014] FCCA 2863
•10 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BERTRAM & THORPE | [2014] FCCA 2863 |
| Catchwords: PRACTICE AND PROCEDURE – Urgent Application – where applicant father proposes to take children overseas on 26 December 2014. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Finch & Harris (No.2) [2014] FCCA 2507 Nash & Reis [2013] FMCAfam 11 VR & RR [2002] FamCA 320; (2002) 29 Fam LR 39; FLC 93-099 |
| Applicant: | MR BERTRAM |
| Respondent: | MS THORPE |
| File Number: | SYC 2201 of 2010 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 1 December 2014 |
| Date of Last Submission: | 1 December 2014 |
| Delivered at: | Sydney |
| Delivered on: | 10 December 2014 |
REPRESENTATION
| Applicant: | In person |
| Respondent: | In person |
ORDERS
Order 5.b made on 8 June 2010 is suspended from 19 December 2014 until 25 January 2015.
The children X born (omitted) 2004 and Y born (omitted) 2005 are to spend time with the Applicant father as follows:
(a)From 5:00 pm on Friday 19 December 2014 until 10:00 am on Sunday 21 December 2014; and
(b)From 6:00 pm on 26 December 2014 until 5:00 pm on 14 January 2015.
The father is permitted to take the children X and Y out of Australia for the purposes of a holiday in the (country omitted) with effect from 26 December 2014.
The Respondent mother is permitted to spend time with the children X and Y out of Australia for the purposes of a holiday in the (country omitted) PROVIDED THAT the mother must return the children to Australia on or before 25 January 2015.
Changeover between the parents where the father delivers the children into the care of the mother for the purposes of the above Orders is to be at 5:00 pm on 14 January 2015 at a place in (country omitted) in the (country omitted) to be arranged between the parties.
For the purposes of the children’s travel out of Australia or return to Australia the parent who has the care of the children at the time in accordance with these Orders must accompany the children on any airline flight.
The father is to pay the costs of the children’s travel and accommodation including airfares out of Australia for all of their travel from 26 December 2014 until he delivers the children into the care of their mother on 14 January 2015.
The mother is to pay the costs of the children’s travel and accommodation including airfares from the (country omitted) to Australia from the time they are delivered into her care on 14 January 2015 until the date of their return to Australia.
IT IS NOTED that publication of this judgment under the pseudonym Bertram & Thorpe is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 2201 of 2010
| MR BERTRAM |
Applicant
And
| MS THORPE |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the father of two children, X, aged ten, and Y, aged nine, to vary parenting orders that were made by consent on 8 June 2010 so that he may take the two girls for a holiday to the (country omitted) for a period of three weeks from Boxing Day 2014 to 16 January 2015. The mother does not oppose the idea of the children spending three weeks in the (country omitted) with their father and members of his extended family, in fact, she would like the children to be returned to her care in (country omitted) so that she may spend time with the children and fly back to Australia with them.
The parties have agreed to some draft orders but disagree on some of the details of the children’s travel, mainly concerning the financial arrangements for the girls’ airfares.
Background
The parties are the parents of two daughters, X, who was born on (omitted) 2004, and Y, who was born on (omitted) 2005. They have been separated since 2009 and the children live with their mother.
On 8 June 2010 Orders Consent Orders were made in this Court by Kemp FM[1] providing that:
a)The mother and father should have equal shared parental; responsibility for the two girls;
b)The girls would live with their mother and spend time with their father at various times during the school term and the school holidays.
[1] As His Honour then was
Order 5 of the Consent Orders sets out the way that the children will spend a block period of three weeks with their parents from Boxing Day to 9 January, being with the mother in the holidays commencing in odd numbered years and with the father in the holidays commencing in even numbered years.
As 2014 is an even numbered year, it is paragraph (b) of Order 5 that applies to the father, and it is this Order that he wishes to vary. The Order provides, relevantly:
During the December/January school holidays (“the Christmas holiday periods”) the children spend equal time with each parent as agreed in writing between the parents and in the event agreement cannot be reached as follows:
b. With the father for a three week period of the Christmas holiday period from 6.00 pm on 26 December to 6.00 pm on 9 January; and from 6pm seven days before the children resume the new school year to the commencement of school or 9am on the day the children commence the school year in even numbered years and otherwise with the mother.
The Father’s Application
The father filed an Initiating Application on 3 November 2014, in which he sought both Interim and Final Orders saying:
1. That clause 5 b of the Parenting Orders SYC 2201 of 2010 be amended to read as follows:
2. With the father for a three week period of the Christmas holiday period from 6pm on 26 December 2014 to 6pm on 16th January 2015.
The Application was supported by an affidavit of the father sworn or affirmed on 3 November 2014.
In his affidavit, the father deposed that he wished to take the children to the (country omitted) over the 2014/2015 Christmas period because his sister has organised a series of birthday celebrations in honour of his mother’s 80th birthday, which will involve some ten members of the family staying together in a holiday farmhouse. The father stated that the activities will involve the children spending time with their maternal grandmother as well, because she will be visiting the paternal grandmother’s house as well.
The father also deposed that he had been negotiating with the mother for some months but they had not been able to come to an agreement. He attempted mediation but that was not successful because the mother refused or failed to attend the mediation. He attached a certificate under section 60I of the Family Law Act 1975 (Cth) to his affidavit.
The father also stated that he was not seeking any additional time with the children over and above the time provided by the Consent Orders.
The father deposed that he had made the flight bookings whilst waiting for the dispute resolution process to proceed. The bookings provide for the father and the children to travel from 10:00 pm on 26 December 2014 and return to Sydney on the morning of 16 January 2015.
The mother did not file a Response or an affidavit.
Submissions
Both parties attended Court on the first return date of the Application. During the morning they entered into settlement discussions and eventually agreed upon some orders to be made by consent, although they remained apart on one particular point which the father told the Court was important.
The parties eventually tendered a document which set out the matters on which they agreed and on one which they disagreed.
The matters upon which the parties agree are as follows:
1. The children will spend time with their father from Friday 19th December 2014 at 5:00 pm until Sunday 21st December at 10:00 am, only if handover of the children takes place in (country omitted) on 14 Jan.
2. The children are permitted to travel overseas with their father and spend time with him from 6pm on Boxing Day until handover to the mother in (country omitted) at 5:00 pm on 14th January 2015.
3. The mother is to return the children’s possessions to the father before 25th January 2015.
4. The children will only travel on an aeroplane if accompanied by their mother.[2]
5. The children are to return to Sydney in order to attend school on 28th January 2015.
[2] Presumably this only applies to the children’s return flight to Australia, as the intention is that they will travel to the (country omitted) with their father.
The father seeks a further order to this effect, to which the mother does not consent:
The mother will pay the cost of bother children’s flights and will utilise the return portion of the airline tickets booked by the father and reimburse the cost of the children’s airfare from (country omitted) (to) Sydney. If the tickets cannot be transferred to accommodate the mother’s travel requirements or to an open ticket then the father will cancel the return portion of the children’s tickets and the mother will purchase replacement tickets.
The father submitted that if the parties agreed to a handover in (country omitted), the complexity of the arrangement would be that the mother should reimburse him for half of the cost of the flights; if not, he would have to re-book.
The mother told the Court that she did not agree because she was being asked to contribute to something that was already booked; she was being asked to fund the tickets that have already been purchased.
The Relevant Law in regard to Parenting Applications
When the Court is considering making parenting orders, whether final or orders until further order (i.e. interim orders), it must have regard to various sections of the Family Law Act 1975 that are to be found in Part VII of the Act. In particular, it should have regard to the provisions of:
a)Section 60B, which contains the objects of Part VII and the principles underlying those objects;
b)Section 60CA, which requires the Court to regard the best interests of the child as the paramount consideration;
c)Section 60CC, which sets out the way that the Court determines what is in a child’s best interests;
d)Section 61DA, which deals with the presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child; and
e)Section 65DAA, which requires the Court to consider equal time or substantial or significant time with each parent where an order has been made that the child’s parents should have equal shared parental responsibility for the child.
All of these matters have been considered, so far as they are relevant.
Relevant matters in section 60CC of the Family Law Act
The best interests of the two children must be the paramount consideration. When looking at the primary considerations in s.60CC(2), there is no suggestion that there is any risk of harm to the children from the proposals for them to spend time in the (country omitted) with their parents, at different times, and members of their extended paternal and maternal families. Quite the reverse would seem to be the case.
There is a benefit to the children of having meaningful relationship with both of their parents, and travelling overseas with them would assist in maintaining that relationship. Neither party has suggested that the other party does not have a good and positive relationship with the girls.
It would appear to me that it will be of benefit to these two girls to spend time with their paternal and maternal grandmothers, as well as their paternal aunt and other extended family members, especially if there are celebrations to mark the paternal grandmother’s 80th birthday.
Equal shared parental responsibility and section 61DA of the Act
Neither party submits that there should be any change to the current arrangement, whereby the parties have equal shared parental responsibility for the children.
There is no need to alter that arrangement.
Section 65DAA of the Family Law Act 1975
The Consent Orders already provide for substantial and significant time with each parent. Neither parent submits that anything else should be the case. The father is not seeking additional time over and above the three weeks provided by the existing order, only that there should be a variation of dates on a one-off basis to accommodate this family function, or series of functions, in the (country omitted).
Conclusions
This is not a dispute about whether or not the children should be permitted to travel overseas with their father or about the length of time taken. There is no disagreement by the mother about the necessary minor variation in dates.
The difficulty between the parties arises from arrangements and airfares. The father’s submissions appear to arise from financial considerations concerning the airline bookings, whilst the mother’s concerns appear to be more an objection to paying money to the father, especially as he went ahead and made airline bookings before the matter came to Court.
This matter should not have come to Court. It is regrettable that the parties could not have come to an agreement about arrangements for the children to spend some time with their father, their grandmothers, and later their mother, in the (country omitted), months ago. The trip appears, on the evidence before the Court, to be obviously in the children’s best interests. The parties’ arguments appear to be about the details of the arrangements, rather than anything to do with the welfare of the children.
If the mother does not want to agree to reimburse the father for some part of the airfares that he has already booked, that is a matter for her. If the father feels that he has to re-book the flights to accommodate the change in the arrangements, because the mother does not wish to pay any money to him, then that is a matter for him.
This Court has said on previous occasions that it will not make “micro-managing” parenting orders, which are detailed and prescriptive orders that micro-manage how parties care for their children. As Judge Brewster held in a recent decision of Nash & Reis[3] at [52], “a court should be minimalist in the orders it makes which, in effect, micromanage how parents bring up their children”.
[3] [2013] FMCAfam 11
His Honour had followed the decision of the Full Court of the Family Court in VR & RR[4], where their Honours held at [30]:
In our view it is not the role of the Court to identify and then seek to determine every matter that is in issue between two estranged parents who cannot agree on the way their child is to be raised. The Court should only interfere in the way that a parent proposes to raise a child to the extent that the welfare of the child requires interference.
[4] [2002] FamCA 320; (2002) 29 Fam LR 39; FLC 93-099
These decisions were more recently followed by this Court in Finch & Harris (No.2)[5].
[5] [2014] FCCA 2507
Orders that are in the children’s best interests
It would appear to be obvious that it will be in the children’s best interests:
a)to travel to the (country omitted) with their father;
b)to spend approximately three weeks in the (country omitted) with members of their paternal and maternal extended families;
c)to meet their mother in (country omitted) at the conclusion of their time with their father; and
d)to travel back to Australia with their mother and return in time for the start of school.
To this end:
a)the father should be responsible for the cost and travel arrangements for the children to travel to the (country omitted) with him until he hands them over to the mother in (country omitted); and
b)the mother should be responsible for the cost and travel arrangements for the children once they are handed over to her in (country omitted) in order for them to return to Australia with her in time to start school.
The parents appear to be intelligent people who are quite able to make suitable arrangements for the children when they are in their care. The arrangements can be safely left to them.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 10 December 2014
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