Browning & Waters

[2009] FamCA 801

FAMILY COURT OF AUSTRALIA

BROWNING & WATERS [2009] FamCA 801

FAMILY LAW  -  CHILDREN  -  interim injunction restraining removal from Australia  -  application to relocate children to U.K.  -  injunction made  -  directions

Family Law Act 1975 (Cth)

FATHER: Mr Browning

MOTHER: Ms Waters

FILE NUMBER: MLC 13805 of 2007

DATE DELIVERED: 21 August 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 21 August, 2009

REPRESENTATION

THE FATHER: In person

THE MOTHER:  In person

Orders

1. That until further order the father and mother by themselves, their servants or agents be and are each hereby restrained from removing, attempting to remove, or causing or permitting the removal or attempted removal of the children Y born … March, 1999, T born … January, 2001 and P born … November, 2002 or either of them from the Commonwealth of Australia  AND IT IS FURTHER ORDERED that the Australian Federal Police place the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch list until further order of the Court. 

2. That as soon as practicable the Registry Manager serve a sealed copy of these orders by facsimile and ordinary prepaid post upon the proper officer of the Australian Federal Police at Melbourne,  AND IT IS REQUESTED  that Australian Federal Police give force and effect to this order. 

3. That the parties attend a child dispute conference at 2:00 pm. on Monday 31 August, 2009 at the Melbourne registry of the Family Court of Australia. 

4. That all interim applications be otherwise dismissed. 

5. That the reasons for judgment this day be transcribed and copies made available to the parties.

6. That the preparation of these orders be expedited forthwith.

AND THE COURT NOTES

That so long as the order contained in paragraph (1) hereof remains in force and effect :

(a)if the mother seeks to travel with the children pursuant to the provisions of paragraph (4) of the orders made herein on 5 March, 2009, she will need to obtain an order from the court to allow her to do so, which could be made by consent if the parties agree;  and

(b)if the father wishes to undertake any overseas travel with the children, he will need to obtain an order from the court to allow him to do so, which could be made by consent if the parties agree.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 13805 of 2007

MR BROWNING

Father

And

MS WATERS

Mother

REASONS FOR JUDGMENT

1. This application was filed by the father on 23 July 2009 and this is its first return date.  In it he seeks that the mother be restrained from removing the parties’ children or any of them from the Commonwealth of Australia.  The mother filed a response on 11 August, 2009 in which she sought to relocate the children’s residence to the United Kingdom. 

2. Each of the parties is unrepresented, as they were when final property and parenting orders were made, by consent, in this court on 5 March, 2009.

3. In brief, the parties met in London in the mid-1990s and had three children in the United Kingdom.  Y is 10, T is 8 and P will be 7 in November.  The parties and children moved to Australia in 2003, having married in the United Kingdom earlier that year. 

4. They finally separated in September 2006, having resumed cohabitation after an earlier separation, and were divorced in December 2006.  The mother is English, the father is Australian.

5. Litigation commenced on 21 December, 2007 and involved applications for final parenting and financial orders.  On 5 March, 2009, orders were made between the parties and a second respondent, named as the trustee of the H Browning Estate.  Those orders finalised all outstanding applications. 

6. In relation to the children, the orders provided for the parties to have equal shared parental responsibility for them.  The children were to live with the mother and were to spend time with the father at times agreed between them.  Specific provisions allowed the mother to take the children to the United Kingdom for holidays in the future upon giving two months notice to the father;  each holiday was to be of not more than six weeks duration.

7. It was envisaged when those orders were made that the mother and children would have one such family holiday later in the year.  The orders provided that upon the mother’s return to Australia from that “family holiday” the parties would do everything necessary to sell the former matrimonial home in S.  After payment of all costs and expenses and discharging encumbrances, the father was to receive $10,000 and the balance was to go to the mother. 

8. The father’s evidence is that the mother wrote to him on 17 July, 2009, advising him that she was putting the house on the market and intended to relocate back to the United Kingdom.  It was this which prompted his application.  The mother’s evidence is that she has endeavoured to discuss a relocation with the father on numerous occasions and it was only after he refused to have any discussions about the matter, that the letter was written.  It is clear from the evidence that in the earlier proceedings there had been some mention of the mother’s desire to return to the United Kingdom with the children, but no application to achieve that goal was pressed, and the final parenting orders were premised on the parties and their children all remaining in the Melbourne area. 

9. The mother’s evidence is that she has never intended to breach the orders.  She travelled to the United Kingdom earlier this year pursuant to those orders and is aware of the provisions of the Hague Convention.  If she were planning to abscond with the children, she would not have given the father advance notice of those plans.

10. From the father’s perspective, it is disconcerting to learn that, within four months of consenting to final orders, the mother now seeks that the children return to live in the United Kingdom.  I understand her case to be that the children’s responses during their recent holiday in the United Kingdom brought home to her the significant advantages which would accrue to them were they to be able to live there permanently.

11. Both of the parties impress as intelligent people.  It is the best interest of the children which must be the focus of the court.  I do not find that the mother intends to do anything other than comply with the existing orders until such time as the matter is resolved.  However, having regard to the lack of trust between the parties and the necessity to ensure that that does not impact adversely on the children, I am satisfied that interim orders should be made restraining both parties from removing the children from Australia, until further order, save by order of the court.  This will mean that, notwithstanding the provisions of the earlier order which provides for family holidays, the mother will need to make an application to the court, or have an order made by consent, if she is to repeat that in the near future.

12. I make it clear to the parties that if they did agree to any overseas travel by the children in the interim, an order could be made by consent very swiftly.  Only if there were disagreement would the matter need to be brought before a judge.

13. I note that one of the orders the father sought was that the children’s passports be placed in his possession until they are adults.  I would not be prepared to make any such order at this time.  The children may well have, or be eligible for, United Kingdom passports, as well as Australian passports.  The only effective order which will ensure neither party removes the children from Australia at this time is an order as foreshadowed. 

14. I propose to adjourn all extant applications to a child dispute conference at 2:00 pm. on 31 August, 2009.  That conference is presided over by a social scientist employed by the court and will provide an opportunity for the parties to tease out the issues in dispute and attempt a resolution.  Although this is not routinely done, I will endeavour to arrange for a registrar (that is, a lawyer) to meet with the parties if the matter does not resolve at the child dispute conference.  The registrar cannot give the parties legal advice, but can focus the parties’ minds on the evidence each needs to pursue and map out the litigation pathway for them. 

15. I strongly recommend that each of the parties obtains some legal advice.  I appreciate that is expensive and the parties may not wish to engage solicitors to act for them in the dispute.  However, some legal advice early in the piece would accrue to the advantage of each.  I appreciate that admonitions from the bench are not necessarily helpful but I would stress the importance of quarantining the children from this parental dispute.  As I said, both of the parties appear to be intelligent people.  That does not mean that a court may not need to determine the dispute between them but that dispute should be left in the adult domain and not allowed to impact adversely on the children, or their relationship with their parents. 

I certify that the preceding
paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2009.

…………………………………………
Associate.