Buick and Boesten (No 2)

[2016] FamCA 779

FAMILY COURT OF AUSTRALIA

BUICK & BOESTEN (NO 2) [2016] FamCA 779

FAMILY LAW – CHILDREN – final orders – where the parties are in dispute as to overseas travel – where consideration is given to the relevant legal principles – where the Court does not consider it in the best interests of the children for either party to be permitted to travel overseas with the children without the consent of the other party – where the application is dismissed.

Family Law Act 1975 (Cth) s 60B, 60CA, 60CB, 60CC, 61B, 64B, 65Y

APPLICANT: Mr Buick

RESPONDENT: Ms Boesten

FILE NUMBER: ADC 3045 of 2010

DATE DELIVERED: 15 September 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 9 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Pyke, QC of Counsel

SOLICITOR FOR THE APPLICANT: Martin Robinson Solicitors

COUNSEL FOR THE RESPONDENT: Mr Heinrich of Counsel

SOLICITOR FOR THE RESPONDENT: Robert Chrzaszcz & Associates Pty Ltd

Orders

1. The father’s Amended Initiating Application filed on 30 May 2014 is dismissed and removed from the active pending cases list.

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 Buick & Boesten (No 2) 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 ADELAIDE

FILE NUMBER: ADC 3045  of 2010

Mr Buick

Applicant

And

Ms Boesten

Respondent

REASONS FOR JUDGMENT

Introduction

1. In proceedings between the father MR BUICK (“the father”) and the mother MS BOESTEN (“the mother”) which have been outstanding for a considerable period of time, the Court recently made detailed consent orders concerning financial matters and in relation to the children D (born in 2003 now aged 13) and E (born in 2005 now aged 11) (“the children”).

2. The orders provided that the parents have equal shared parental responsibility for the children for their long term care, welfare and development and that the children live with the parties on a week about arrangement and made detailed provisions for special occasions and school holidays.

3. At the final hearing before me the only issue which remained to be determined was whether the Court should make orders about passports and which permitted the father to take the children overseas.

4. The specific orders sought by the father at the final hearing were the following:

   (i)that the husband and wife do all things and sign all documents necessary to obtain passports for the children the cost thereof to be paid by the requesting parent and the passports to be held by that parent

   (j)that in the event that the husband or the wife propose any overseas travel for either of the children, that party is to provide the other party not later than 30 days prior thereto with:

   (i)notice of proposed travel;

   (i)a comprehensive itinerary including dates, flights and accommodation details;

   (ii)copies of airline tickets or other transport tickets, if applicable.

   provided that neither party shall take the children to [City R, Country W] without the written consent of the other party and that the requesting parent shall accompany the children.

5. The wife opposed the orders.

The hearing

1. At the hearing before me the father was represented by Ms Pyke, QC and the mother was represented by Mr Heinrich.  Neither party sought to cross-examine the parties.  The Court was asked to make the decision based upon the affidavit material which had been received for the trial.

2. On behalf of the father it was submitted that now that the orders sought had been amended to provide for the wife to consent to the children being taken to City R, Country W (City R) there was no legitimate reason why the father should not be able to travel overseas with the children.  It was submitted that the children would be distressed if they were deprived of family holidays which could be taken overseas with their older siblings who now reside with the father and are able to travel with him.

3. On behalf of the mother it was submitted that the father’s past behaviour and the ongoing difficulty with the parties’ communication outweighed any benefit to the children of overseas travel.

4. On behalf of the mother it was submitted that the father could not be trusted to look after the children appropriately whilst on holidays overseas and that he could not be trusted to abide by any proposed itinerary.  It was submitted that, for example, the father would be able to take the children overseas saying that they were going to Country S, but he may then divert to City R without telling the mother.

The law

1. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) provides as follows:

Section 60B

Object of part and principles underlying it

1. The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

2. The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. Sections 60CA, 60CB and 60CC provides as follows:

Section 60CA

Child's best interests paramount consideration in making a parenting order

In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. 

Section 60CB

Proceedings to which Subdivision applies

1. This Subdivision applies to any proceedings under this Part in which the best interests of a child are the paramount consideration.

Note:Division 10 also allows a court to make an order for a child's interests to be independently represented by a lawyer in proceedings under this Part in which the best interests of a child are the paramount consideration.

1. This Subdivision also applies to proceedings, in relation to a child, to which subsection 60G(2), 63F(2) or 63F(6) or section 68R applies.

Section 60CC

How a court determines what is in a child’s best interests

1. Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3). 

Primary considerations

1. The primary considerations are:

   (a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. 

(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b). 

Additional considerations

1. Additional considerations are:

   (a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

   (b)the nature of the relationship of the child with:

   (i)each of the child’s parents; and

   (ii)other persons (including any grandparent or other relative of the child);

   (c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

   (i)to participate in making decisions about major long-term issues in relation to the child; and

   (ii)to spend time with the child; and

   (iii)to communicate with the child;

   (ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

   (d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

   (i)either of his or her parents; or

   (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)the capacity of:

   (i)each of the child’s parents; and

   (ii)any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

   (h)if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)the likely impact any proposed parenting order under this Part will have on that right;

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

   (j)any family violence involving the child or a member of the child’s family;

   (k)if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:

   (i)the nature of the order;

   (ii)the circumstances in which the order was made;

   (iii)any evidence admitted in proceedings for the order;

   (iv)any findings made by the court in, or in proceedings for, the order;

   (v)any other relevant matter;

   (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)any other fact or circumstance that the court thinks is relevant. 

2. Section 61B provides:

Section 61B

Meaning of parental responsibility

In this Part, parental responsibility , in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

1. Section 64B deals with parenting orders and related terms.  In particular s 64B(1)(a) provides:

Section 64B

Meaning of parenting order and related terms

1. A parenting order is:

   (a)an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2);

   …

2. Section 64B(2)(d) and (i) are as follows:

   (2)A parenting order may deal with one or more of the following:

   …

   (d)if 2 or more persons are to share parental responsibility for a child--the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;

   …

   (i)any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

3. Section 65Y of the Act provides:

Section 65Y

Obligations if certain parenting orders have been made

(1)If a parenting order to which this Subdivision applies is in force, a person who was a party to the proceedings in which the order was made, or a person who is acting on behalf of, or at the request of, a party, must not take or send the child concerned from Australia to a place outside Australia except as permitted by subsection (2).

Penalty:Imprisonment for 3 years.

Note: The ancillary offence provisions of the Criminal Code , including section 11.1 (attempts), apply in relation to the offence created by subsection (1).

(2)Subsection (1) does not prohibit taking or sending the child from Australia to a place outside Australia if:

(a)it is done with the consent in writing (authenticated as prescribed) of each person in whose favour the order referred to in subsection (1) was made; or

(b)it is done in accordance with an order of a court made, under this Part or under a law of a State or Territory, at the time of, or after, the making of the order referred to in subsection (1).

Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code ).

1. The provisions in s 65Y form part of Subdivision E of Division 6 of Part VIII of the Act and therefore require the consideration of the best interests of the children before making any order that permits the children to leave Australia without the written consent of both parents for that travel.

Discussion and findings

1. In his trial affidavit  affirmed and filed on 21 July 2016, the father refers to the two eldest children of the relationship, Ms J and Mr K.  (Ms J was born in 1994 and is now aged 22 and Mr K was born in 1995 now aged 20 nearly 21).  Ms J and Mr K have resided with the father since 2011.  The two younger children, D and E live with each of the parents on an alternate week basis.  Orders have also been made for specific arrangements for special occasions and school holiday time.

2. There is extremely limited evidence concerning overseas travel in the father’s trial affidavit.  Under the heading “My parenting role during the marriage” paragraph 39 states:

   We took the children overseas on holidays a number of times including places such as [City R], as well as [Country T] and [Country U].

3. Paragraph 43 of the affidavit refers to the orders which he sought in relation to the children.  Subparagraphs(h) and (i) refer to overseas travel:

   (h)that the husband and the wife do all things and sign all documents necessary to obtain passports for the children the cost thereof to be paid by the requesting parent and the passports to be held by that parent;

   (i)that in the event that the husband or the wife propose any overseas travel for either of the children, that party is to provide the other party not later than 30 days prior thereto with:

   inotice of proposed travel;

   ii.a comprehensive itinerary including dates, flights and accommodation details;

   iii.copies of airline tickets or other transport tickets, if applicable.

4. The affidavit then sets out the husband’s evidence in relation to each of the items but does not deal specifically with overseas travel or passports.

5. Paragraph 60 of the affidavit refers to subparagraph (h) but does not appear to deal with passports of the children, rather it refers to the children being permitted to contact him.

6. In the outline of case document filed on behalf of the father, reference is made to the father’s wish to be able to take the children overseas.  It refers to the parties’ interest in the City R Unit Trust “… which enables the parties to have the use of the villa outside [V Town] in [City R].”  It also refers to the husband’s wish to continue to spend time in City R with the two adult children.  This however is a submission on his behalf and not evidence.

7. I accept that the evidence indicates that the husband wishes to have the benefit of an order which would allow him to take the children overseas after he has provided information to the wife and whether or not she consents to that travel, save and except that her consent would be required in relation to travel to City R.

8. In the mother’s trial affidavit sworn on 30 August 2016 and filed on 31 August 2016 under the heading “Passports” the mother states as follows:

   172.I oppose the (sic) [D] and [E] obtaining a passport.

   173.In or about 2011, [Mr K], whilst 15 years old (turning 16 when in [City R]), went overseas to [City R].  The husband did not inform me of this prior to [Mr K] going.  The Husband did not accompany [Mr K] to [City R].

   174.I learned about this from [D] and [E].

   175.I say that the conduct of the Husband since separation referred to throughout this affidavit shows that he will, if it suits him, not comply with Court Orders, and acts unilaterally and does not inform me of matters.

   176.The Husband has an interest in property in [City R].  The Husband has sought orders to retain the [City R] Property.  It is likely he will travel to [City R] in the future.

   177.I regard [City R] and [Country W] as unsafe.  I refer to the current Australian Government travel warnings.  The current Australian Government travel warning states:

   “Exercise a high degree of caution in [Country W], including [City R]”

   178.Page [18] is a copy of the current Australian Government travel warning for [City R].

   179.I am concerned that the Husband does not appear to be concerned about formal Australian Government travel warnings.  On 16 January 2015 the Husband filed an Amended Application in a Case seeking orders to take D and E to [City R], in circumstances where there was an Australia (sic) Government travel warning stating:

   “We advise you to exercise a high degree of caution in [Country W] including [City R], at this time due to the high threat of terrorist attack”

   180.His application was dismissed.

9. The previous Application in a Case was an interim hearing and ex tempore reasons were given (but not published).  The application was dismissed on 11 March 2015.

10. Taking into account the difficult relationship between the parties I do not place any significant weight upon the mother’s assertions based upon her opinion in paragraph 175.

11. The orders now sought by the father would allow him to take the children to City R only with the prior written consent of the mother.  The orders proposed however would allow the father to take the children to any other country outside of Australia regardless of the travel warning status of that country, without the mother’s written consent.

12. The primary considerations under s 60CC refer to the benefit to the children of having a meaningful relationship with both parents and the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

13. The orders which are sought in relation to overseas travel would not have a significant impact upon the children’s benefit of a meaningful relationship with either of their parents.

14. The mother maintains that she has concern about the need to protect the children from neglect.  These concerns are about the children not being supervised adequately if they were allowed to travel overseas.

1. Section 60CC(2) therefore does not prevent the Court from making the orders which the father seeks.

2. Section 60CC(3) additional considerations are as follows:

3. Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.  There is no specific evidence about the children’s views concerning these orders, nor would their views carry significant weight.  Both parties conceded that the children would probably say that they would like to travel overseas.

4. Section 60CC(3)(b) the nature of the relationship of the child with each of the child’s parents, and other persons (including any grandparent or other relative of the child).  This is not a significant factor.  The Court accepts the children have a good relationship with both parents and have maintained a good relationship with their older siblings.

5. Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:  (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child.  Both parents have taken the opportunity to participate in decision making, spending time with the children and communicating with the children.

6. Similarly, s 60CC(3)(ca) is not a determinative matter concerning overseas travel.

7. Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from (i) either of his or her parents or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.  The change in circumstances which would arise following any travel overseas is not likely to have any significant effect on the children.

8. Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.  Similarly, any overseas travel would have very limited practical difficulty and expense and would not affect the children’s right to maintain the personal relationships and direct contact with both parents.

9. Section 60CC(3)(f) the capacity of (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child);  to provide for the needs of the child, including emotional and intellectual needs.  The mother maintained that the history of the father’s care of the children indicated that he had a reduced capacity to provide for the children’s needs.  This evidence however has not been tested.

10. Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.  The children in the past have had the benefit of overseas travel and have enjoyed this lifestyle.

11. Section 60CC(3)(h) is not relevant.

12. Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.  The mother has indicated a protective attitude and is concerned about the father’s responsibilities as demonstrated by him permitting one of the older children to travel overseas unaccompanied by a parent when only aged 15/16 years of age.

13. Section 60CC(3)(j) any family violence involving the child or a member of the child’s family.  This is not a significant factor in making a determination concerning the proposed overseas travel.

14. Section 60CC(3)(k) this is not a relevant factor.

15. Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.  It is a possibility in these circumstances that if an order was not made giving the father permission to take the children overseas without the mother’s consent, then there is a risk of further proceedings.  The parents have the responsibility to consider what is in the children’s best interests and if appropriate to consent to the travel.

16. Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant.  Under this heading the Court takes into account the existing warning issued by the Australian government concerning travel to City R and requiring the “exercise of a high degree of caution in [Country W], including [City R]”.  The father however has amended his application to provide for the mother’s consent if he were planning to travel to City R.

17. I consider it to be the obligation of the father to establish the necessary basis upon which the Court should make an order which would allow him to travel anywhere overseas with the children without the mother’s consent, save and except, requiring her consent to City R.

18. There is limited information from the father in his evidence as to planned travel to anywhere other than City R.  I accept that there is still, and has been for a considerable period, a difficult relationship between the parents and their ability to communicate.  There is however in place a consent order which provides for the parents to have equal shared parental responsibility with respect to the children and for the children to live on a week about arrangement with each of the parents.

19. There are possible benefits to the children of overseas travel and possible benefits to the children of holiday time overseas with their father and older siblings.  However, the risks to the children of overseas travel to unknown destinations overseas without the mother’s consent are not orders which would be in the best interests of the children.

20. The father has failed to establish that the orders which he seeks in relation to the children travelling overseas without the mother’s prior consent are in the best interests of the children.

21. If the parents agree to the children travelling overseas they will be able to obtain the necessary passports.

22. The father’s application for the order is therefore dismissed.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 15 September 2016

Associate: 

Date:  15 September 2016