Brice and Brice

[2015] FamCA 1089

FAMILY COURT OF AUSTRALIA

BRICE & BRICE [2015] FamCA 1089

FAMILY LAW – PARENTING – CASE APPLICATION – current orders be suspended for operational period of this order – father to spend time with children subject to lodging passport with court registry – airport watch order for children be extended – where the father sought Christmas holiday time to be spent with the children in Country E – where the father sought in the alternative to spend time with the children in Australia – where the father has previously removed the children from Australia – where Hague Convention proceedings have previously been required to return the children to Australia – where the children spending block time in Country E is not considered in their best interests – where the children should have a re-introduction with their father.

Family Law Act 1975 (Cth)

APPLICANT: Mr Brice

RESPONDENT: Ms Brice

FILE NUMBER: CSC 329 of 2007

DATE DELIVERED: 13 December 2015

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Tree J

HEARING DATE: 3 December 2015

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

1. To the extent of any inconsistency with these orders, the orders of Coates FM made 6 July 2007 be suspended until 25 January 2016.

2. In the event that the father travels to Australia in the 2015/2016 Christmas school holidays, and if on or before 9:00am on Thursday 24 December 2015, the father advises the mother in writing that he intends to avail himself of this Order, and provided that the father lodges all his current passports with the Court Registry in Cairns beforehand, then he spend time with the children C born … 2000 and C born … 2001 (“the children”) as follows:

   (a)from 9:00am until 5:00pm on each of Tuesday 5 January 2016, Wednesday 6 January 2016 and Thursday 7 January 2016, with such time to be spent within a 200km radius of F Town;

   (b)from 9:00am on Tuesday 12 January 2016 until 5:00pm on Thursday 14 January 2016, with such time to be spent within a 200km radius of F Town;

   (c)from 9:00am Sunday 17 January 2016 until 5:00pm on Saturday 23 January 2016, with such time to be spent in Australia;

   (d)changeovers of the children between the parents are to occur at the G Street, H Town.

3. The Airport Watch Order currently in place for the children B born … 2000 and C born … 2001 be extended for a further 12 months.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Brice & Brice 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 TOWNSVILLE

FILE NUMBER: CSC 329 of 2007

Mr Brice

Applicant

And

Ms Brice

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Before me is an application in a case filed by the father on 6 October 2015, seeking orders which would permit two of the three children of the relationship, being B and C, to spend time with the father during the forthcoming Christmas holiday period.

2. The first order which the father seeks is that the children spend virtually all of those Christmas holidays with him in Country E, with the mother being responsible for the cost of their travel.  The alternative orders which he seeks is that he spend time with those two children in Australia.  Although his alternative application initially sought virtually all of those school holidays, ultimately, he accepted that it was more likely to be that his funding for travel to Australia would be forthcoming for January.  For her part the mother says that the children should spend time only with the father in Australia, however, it should be staggered and progress to a block of one week in total, and that all of that time should take place in January. 

3. The first matter which I need to address, therefore, is not so much whether the children should spend time with the father, but rather where that time should be spent.  The father says it should be in Country E.  The mother says it should be in Australia.  The mother relies upon a number of matters as demonstrating that there is a real risk of the father retaining the children in Country E, if they are permitted to spend time with him there.  Particularly, she points that the father did indeed remove the children from Australia without her consent in 2006 and the children were only returned after Hague convention proceedings were commenced in Country E, and the relevant Country E court ordered the return of the children to Australia.  I note that, further, the father appears to have unsuccessfully appealed that order prior to their return. 

4. The second point which she makes in her affidavit material, is that the father appears to either not recognise the authority of Australian court orders, or alternatively does not believe that they are deserving of obedience.  The father denies this and says that by virtue of being a legal practitioner, he has no intention of breaching any court order, whether Australian or Country E. 

5. The final matter which I note arises from the material is that until relatively recently the father has indeed persistently sought orders for the care of the children to change to him in Country E, and whilst he has been unsuccessful in being permitted to relitigate that issue, there is no reason to think that his desire has abated.

6. Therefore, on the one hand, the mother says that the father genuinely poses a risk of retention of the children in Country E, whereas the father denies that.  However, in interim proceeding such as this – where there is not cross-examination – I am unable to make a firm conclusion as to the risk which the father presently poses.  However, it is incontestable that indeed in 2006 he did retain the children and appeared to resist the attempts by the relevant Country E central authority to have the children returned to Australia. 

7. Whilst, of course, risk assessment in circumstances such as this, where there is only an interim application on foot, is difficult, nonetheless I am satisfied that there is a risk that the father would seek, if the children were to be in his care in Country E to seek to retain them there and perhaps commence proceedings in relation to them whilst they were in Country E.  I am not able to make any firm conclusion on that, but the risk is nonetheless a real one.  I am therefore not persuaded that the father’s time with the children should be in Country E.

8. There is a second reason, however, why the father’s application in relation to the children spending all of the Christmas holidays with him in Country E is not in the children’s best interests.  That is that the children have now not spent face-to-face time with the father since relatively brief periods over the Christmas period in 2013/ 2014, and in recent times they have not had communication, or at least regular communication with him, either.

9. The experience of the eldest child, B, when he recently was in Country E and spent some time with the father, is perhaps revealing as to what may occur, if the children are required to spend long periods of time with the father in Country E.  Although it was intended that B would spend some considerable time with the father, in fact he only lasted two days, before unilaterally determining that he wanted to go somewhere else. 

10. In my view, the prospect of the children spending a lengthy block period of time with the father in Country E runs the risk that the attempt of re-igniting the relationship between the father and the children would in fact not be assisted by such an extended period. 

11. I am therefore not persuaded that the father’s time should be spent with the children in Country E. 

12. That then necessarily raises not whether the father should spend time with the children in Australia, because the mother concedes that he should, but rather whether the time should be in a four-week block, as proposed by the father, or whether it should be a staggered introduction, as proposed by the mother.

13. The mother’s proposal, as ultimately formulated, appeared to be that there be three consecutive days of time in the first week, that time being daytime only between 9 and 5 pm; that in the second week there be three days, together with two overnights in that week; and that in the third week, that would then increase to seven days including overnights, with the father, therefore, spending in total 13 days with the children over a 21-day period.

14. The benefits of this, she says, are that it would effect a gradual re-introduction of the children into his life, albeit at a fairly forced pace, and it would allow the children to adapt to spending time with the father and away from their home in circumstances which would enable them to feel secure. 

15. The father, on the other hand, says that the children should spend four weeks with him and anticipates that spending that time as a four-week block would likely be of benefit to re-igniting the relationship. 

16. In this respect, it is educative to note the recommendations that were made by the family report writer in her report of 20 April 2015.  She contemplated that the children should spend at least a week of holiday time with the father in June/July or September/October 2015 school holidays, and then for an extended period of time over Christmas.  Whether that latter time was in Country E or Australia would depend upon the risk which the Court identified with the children travelling to Country E.  In my view, her opinion is consistent with a staggered re-introduction of the children into the father’s life, or perhaps, more aptly, vice versa. 

17. The family report writer also noted some other relevant issues in determining the appropriate orders in the best interests of the children.  The first I have already adverted to namely, that it is now quite some time since the children have actually spent face-to-face time with the father.  But secondly, she noted that the mother is at best passive in relation to the facilitation of a meaningful relationship between the children and the father, and hence the family report writer was obviously persuaded that the best way of ensuring that relationship was by the children spending face-to-face time with the father. 

18. I am satisfied, indeed, that there is likely benefit in the re-establishment of the relationship between the father and the children, if there is some progressive development of the children spending time with the father, and I am satisfied that the regime as ultimately formulated by the mother, namely that there be three days of consecutive daytime days in the first week, three consecutive days with two overnights in the second week and seven days in the third week, do indeed see the prospect of the re-establishment of a meaningful relationship with the children and father in circumstances which maximise the prospect of that being successful. 

19. Therefore, I am persuaded that the orders that are in the best interests of the children would commence in the week commencing Sunday, 3 January 2016, and that there should be orders that will then see the children able to spend some time back in the mother’s home prior to commencing their schooling on 28 January, which is plainly desirable for them. 

20. I do not ignore the fact that the father says that he wants to get the maximum amount of value that he can for the costs associated with travel to Australia.  However, that cannot outweigh the need to proceed cautiously in re-establishing the relationship between the father and the children in a way which promotes the greatest prospect of that relationship being re-ignited. 

21. I will condition the orders that I propose to make upon the provision that the father lodge his passports with the Court in the registry before he commences to spend time with the children. 

22. I am further satisfied before 9 am on Christmas Eve, the father should advise the mother whether he intends to avail himself of these orders for spending time with the children in Australia.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 3 December 2015.

Associate: 

Date: 3 December 2015