Busch and O’Shea - [2013] FamCA 461

FAMILY COURT OF AUSTRALIA

BUSCH & O’SHEA

[2013] FamCA 461

FAMILY LAW – CHILDREN – Best interests of a child – Whether a child should be permitted to travel overseas to spend time with their father in Scotland – Where the period of proposed travel was for 18 days – Where the Court formed the view that it was unlikely that the father would not return to Australia with the child

Family Law Act 1975 (Cth)

Cases considered:
B and B; Re Family Law Reform Act 1995 (1997) FLC 92-755
Kuebler & Kuebler (1978) FLC 90-434
Thomason & Malhotra [2010] FamCAFC 85

APPLICANT:

Mr Busch

RESPONDENT:

Ms O’Shea

FILE NUMBER:

SYC

3942

2008

DATE DELIVERED:

17 June 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Fowler J

HEARING DATE:

12 June 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Morris

SOLICITOR FOR THE APPLICANT:

Michael Conley Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Messner

SOLICITOR FOR THE RESPONDENT:

Ginny Giorgio & Associates

Orders

The requirement of a section 691 Certificate is dispensed with.
The child of the parties R born … September 2005 (“the child”) is to spend time with the father in Scotland from 28 June 2013 to

15 July 2013.
The father is to provide to the mother a copy of the following documents within seven days from the date of these Orders, namely:
(a)a confirmed and paid Itinerary for the child and the father providing the following information:
(i)departure dates and times from Sydney for the child and the father
(ii)the arrival times and dates for Scotland for the child and the father
(iii)the departure times and dates from Scotland to Sydney for the child and the father
(b)the telephone and other contact details for the child and the father during the period of travel and the details of accommodation including contact numbers of premises at which the child and the father will be staying during any stopover and whilst overseas.
Whilst the child is in the father’s care as set out in Order (2) hereof the father will at all times accompany the child, and during the times spent by the child overseas the father shall personally supervise the child.
The father is to ensure that the child will be available for telephone contact with the mother on the father’s mobile telephone at all reasonable times during the holiday (excepting during air travel).
The father is to be responsible for all associated travel costs for the child and will cause the child to be collected from and delivered to the mother’s place of residence at the commencement of the child’s time with him and at the conclusion of such time respectively.
The mother is to provide to the father the child’s current passport at the time the father collects the child at the commencement of the holiday period during which the child will travel overseas and the father shall return such passport to the mother upon returning the child to the mother at the conclusion of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Busch and O’Shea

Details

AGLC: Busch and O’Shea [2013] FamCA 461
Case: [2013] FamCA 461
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Mr Busch (the applicant father) sought orders for his child, R, to spend 18 days on an overseas holiday in Scotland with him. Ms O’Shea (the respondent mother) opposed the application, seeking an expert report on the potential effects of the holiday on the child before any orders were made. The Court refused the mother's application for an adjournment, finding it was not made in a timely manner, and proceeded to an interim hearing to determine if the proposed overseas travel was in the child's best interests.

The Court was required to determine whether permitting the child to travel to Scotland for 18 days to spend time with her father would serve the child's best interests, considering the usual interim evidentiary basis. This involved assessing the primary and additional considerations outlined in section 60CC of the *Family Law Act 1975* (Cth), including the benefit of a meaningful relationship with both parents, the need to protect the child from harm, the child's views, and the nature of the child's relationships with her parents and other significant persons. The Court also considered the principles established in cases such as *Kuebler & Kuebler* and the overarching requirement to regard the best interests of the child as paramount.

The Court reasoned that the proposed 18-day trip was not an excessively long period, particularly given the father's limited opportunities for extended time with the child due to his residence in Scotland and work commitments in Australia. It found the father's application to be bona fide and rejected the mother's assertion that it was a ploy to reduce child support obligations. The Court emphasised the importance of the child maintaining her relationship with her father and her extended family in Scotland, noting there was no evidence of harm or an inability of the father to care for the child. The Court also concluded that the likelihood of the child being returned to Australia was not a concern, with the father's promise to return the child expected to be honoured. The Court applied the principles from *Kuebler* and subsequent cases, alongside the statutory considerations under the *Family Law Act 1975*, to conclude that the overseas travel was in the child's best interests.

The Court ordered that the child spend time with the father in Scotland from 28 June 2013 to 15 July 2013. Specific conditions were imposed, including the father providing a confirmed itinerary and contact details, personally supervising the child at all times, ensuring the child was available for telephone contact with the mother, and being responsible for all travel costs. The mother was ordered to provide the child's passport to the father for the duration of the trip, and the father was to return it upon their return to Australia.

Orders