Birushke and Line

[2009] FamCA 994

FAMILY COURT OF AUSTRALIA

BIRUSHKE & LINE [2009] FamCA 994

FAMILY LAW – CHILDREN – Overseas travel

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC

HUSBAND: Mr Birushke

WIFE: Ms Line

INDEPENDENT CHILDREN’S LAWYER

FILE NUMBER: SYC 1606 of 2009

DATE DELIVERED: 20 October 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: CRONIN J

HEARING DATE: 20 October, 2009

REPRESENTATION

COUNSEL FOR THE HUSBAND: Mr. James

SOLICITOR FOR THE HUSBAND: Rochelle Belcher

COUNSEL FOR THE WIFE: Ms. Phelan

SOLICITOR FOR THE WIFE: Jeanne Gorman

COUNSEL FOR THE I.C.L. Mr. Allen

INDEPENDENT CHILDREN’S LAWYER Victoria Legal Aid

Orders

1. That the application filed by the wife on 16 October 2009 is dismissed.

2. That the application of the husband filed 8 October 2009 is dismissed.

3. That the costs of the husband, the wife and the Independent Children’s Lawyer of the said applications are reserved.

4. That all proceedings are otherwise to be determined in accordance with the orders of the Honourable Justice Dessau of 16 October 2009.

IT IS NOTED that publication of this judgment under the pseudonym Birushke & Line is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  SYC 1606 of 2009

MR BIRUSHKE

Husband

And

MS LINE

Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. D, born in November, 2004 is the only child of the marriage between Mr Birushke (“the father”) and Ms Line (“the mother”).

2. The mother wishes to take the child to the United States of America for a period of three weeks, almost immediately, so that he can be present when she remarries to an American citizen, Mr J. 

3. The father objects to the trip. 

4. Each of the parties appeared before me represented by counsel.  The independent children’s lawyer described the position as one where the “cons” out-weighed the “pros”. 

5. I agree with the views of the independent children’s lawyer.  There is nothing urgent about the trip and no necessity for the child to be present immediately at the wedding of his mother.  The wedding had been set for two occasions previously in the United States and was altered.  The mother’s position is that the wedding can be brought on very quickly.

6. There is significant litigation pending in Australia to which I shall refer in a moment.  It is complex because it involves two cases involving the mother which have now been consolidated and will be heard before Dessau J.

7. In my view, on the evidence, there is no need for the child to be present at the wedding at this stage, and whilst the focus is clearly on the emotional needs of the wife, that is not a basis to simply drag the child along.  Accordingly on the evidence, on 20 October, 2009, I dismissed with wife’s application.

8. The husband is 40 years old and the wife 33.  The parties met in May 2003, married in April 2004 and separated on 10 August, 2008. 

9. In December 2008, the wife requested the husband to sign passport documents so that she could take D to the United States of America.  At that time, she was entering the United States on the basis of a three month visa.  The husband signed the documents. 

10. Subsequent to their agreement about the passport, an application was made for divorce.  In that document, the wife said she would be living in the United States.  Subsequently again, the mother and child went to the United States. 

11. At the conclusion of the three month visa period, the wife returned to Australia.  At that time, there was a relationship ongoing with Mr J.  When the wife returned, the husband filed an application seeking to preclude the child from travelling overseas again.

12. On 20 April, 2009 in the Family Court of Australia at Sydney, orders were made by the consent of both parties restraining the removal of the child from Australia and for the mother to provide the child’s passport to a solicitor. 

13. Importantly, it was agreed by the parties and an order was made that, they have equal shared parental responsibility.  That however is recorded as an interim order. 

14. Similarly, the orders provided that until 31 December, 2009, the child live with his mother for three weeks followed by one week with his father.  After 1 January, 2010, the child was to live with his parents on a week-about arrangement. 

15. Parallel to these proceedings in this court is a dispute between the mother’s former husband and herself over a child named K.  By order of Dessau J on 16 October, 2009 and with the consent of the respective lawyers for the fathers of K and D, those proceedings have been consolidated.  The only matter before me in the judicial duty list on 20 October, 2009 related to the question of the overseas travel by D.

16. In her affidavit filed 16 October, 2009, the mother said (and it was not disputed by the husband) that she set a date for her wedding on two occasions in the United States.  The first was in September, 2009 and the second in October, 2009.  On the second occasion, the wedding was delayed again.  The wife said that the wedding could be put back on again on short notice and it was intended to occur in the week commencing 24 October, 2009.  For that purpose, the wife bought a round trip ticket for D.  That ticket was bought earlier this year. 

17. It would seem on the wife’s evidence that the wedding to Mr J was initially planned to proceed in the United States without D being present.  As it was put by counsel for the wife, Mr J’s mother indicated that the wedding should not take place without D present.  The mother said that it was very important that her son be present at her wedding.  I note the child is not yet five years of age.

18. By way of some form of security, the mother offered to lodge $1,100 into a solicitor’s trust account as the round trip cost of a ticket to the United States should the husband avail himself of coming to the United States. 

19. In terms of the security aspects, to the extent that they were relevant, the mother pointed to the fact that she had no other funds to offer by way of security.  In addition, she said that if she and Mr J were married in the United States, she had a much better chance of remaining there permanently as his wife than if Mr J came to Australia and they married here. 

20. Counsel for the wife maintained that if there was a court order in Australia about parenting and the wife breached those by remaining in the United States, she would thereafter be excluded from the United States and not be able to return.  As evidence of that, she pointed to a problem for Mr J’s brother who has faced that prospect. 

21. The husband for his part expressed the view that he had little confidence in the wife and feared that she would not return, notwithstanding the provisions of the Hague Convention.  He pointed to the fact through his counsel that there was currently no application for the mother to relocate the child and with or without being married to Mr J, the orders made by consent of the parties in April would tend to suggest that a substantial change would need to be made if her intention was to remain in the United States. 

22. In respect of the future therefore and what each party expects about the residence for D, the picture is very unclear.  To a large degree, the proceedings involving D’s half-sibling K may become not only relevant but important in deciding what ongoing relationship D has with K.

23. All of those matters however pale into insignificance.  As I pointed out to the parties, the determination of this application is on the question of what is in the best interests of D.  There is little evidence before me about the nature of the relationship between the parties and their parenting capacity.  On the cursory examination of the material, it would be evident that the parties have little trust in each other which flies in the face of the orders made by their consent in April 2009.  Each was thereby acknowledging that the other was going to have a significant involvement in the life of D. 

24. I could conclude from their agreement that each has the relevant parenting capacity to care for the child. 

25. There is no evidence as to how D would feel about being away from his father or for that matter his mother, if she were permitted or not permitted to go to the United States.  The wife said that if D could not go, then she would not go either.

26. There is no evidence about any urgency nor just how D would be cared for during the proposed wedding period. 

27. The impetus for the application really stems from the fact that the wife had a request from her future mother-in-law to start married life with a wedding at which D was to be present.  In my view, that is not a priority issue. 

28. Section 60B sets out the relevant principles and objects of the parenting legislation.  Its focus is on significant involvement of both parents in the lives of their children.  There is little evidence about how this modestly short trip would impact upon D.  I accept the proposition put by counsel for the wife that all was well in December 2008 but that the husband has subsequently changed his mind.  Be that as it may, the function of the court is to determine what is in the best interests of the child. 

29. Section 60CA sets out that any decision associated with the parenting of a child requires the court to consider the welfare of the child as the paramount consideration.  Section 60CC sets out the various factors that guide a court in relation to what is in the best interests of the child.  None of those matters has been addressed in any of the affidavit material. 

30. In this case, I could not be satisfied that there is any urgency about the proposed trip.  The wife has put the husband in a position where matters had to be expedited for the hearing when in reality, the wedding could be put on at any time if the child was not present and if she wanted the child present, all of the issues associated with his welfare needed to be canvassed. 

31. As I indicated at the time to the parties when dismissing the wife’s application, I could not be satisfied that there was anything particularly important for D at this point in his life in being permitted to travel to the United States to attend a wedding with his mother.  That is particularly so in the light of the confusion about just exactly what the wife’s position will be in the future concerning orders she proposes.  On that basis, the evidence does not support the application of the wife. 

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin.

Associate: 

Date:  20 October 2009