Cadenet and Behrendt

[2019] FamCA 710

FAMILY COURT OF AUSTRALIA

CADENET & BEHRENDT [2019] FamCA 710

FAMILY LAW – CHILDREN – overseas travel – where the mother seeks to travel with the child to the United States of America – where the mother unilaterally sought the school’s permission for the child to miss one week of school – where the father consents to the overseas travel on the condition he has the child for the entirety of the September school holiday period – where the mother opposes – where the mother alleges the father is an unacceptable risk to the child – orders made allowing the child to travel to the United States of America.

Kuebler & Kuebler (1978) FLC 90-434
Line & Line (1997) 92-729

APPLICANT: Ms Cadenet

RESPONDENT: Mr Behrendt

INDEPENDENT CHILDREN’S LAWYER: Mark Whelan Lawyer

FILE NUMBER: SYC 7807 of 2016

DATE DELIVERED: 10 April 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Harper J

HEARING DATE: 10 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wong

SOLICITOR FOR THE APPLICANT: Avondale Lawyers

COUNSEL FOR THE RESPONDENT: Mr Levy

SOLICITOR FOR THE RESPONDENT: Broun Abrahams Burreket

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Stolier

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mark Whelan Lawyer

Orders

1. By consent, orders be made in accordance with the document titled “Minute of Consent Orders” as signed by the parties, the Independent Children’s Lawyer and initialled by me, dated today and placed with the papers.

2. I DIRECT that the solicitor for the respondent father file a clean certified typescript of the said document placed on the court file within 3 business days of the date of these orders in Microsoft Word format.

3. Pursuant to s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are included in these orders.

4. Order 13 of the orders dated 8 February 2017 be discharged an in lieu therefore read:

   (a)       Notwithstanding Order 12, the Mother be permitted to travel with the child to the United States of America annually during the June and July winter school holiday period, 2019 to commence one week prior to the scheduled school holiday commencement date and to conclude on the school return date for the purpose of visiting the child’s maternal and paternal grandparents and the father’s time shall be suspended accordingly.

   (b)       Notwithstanding any other order the child shall spend time with the father during the September/October school holiday period 2019 to commence on the scheduled school holiday commencement date and conclude on the school return date and the mother’s time shall be suspended accordingly.

5. Each party is hereby restrained from applying to the child’s school to extend the school holiday period without the other parties consent in writing NOTING that this does not restrain a party from seeking from a school an articulation of its attitude to the child missing any school time if such an application would be made.

6. Orders in accordance with the handwritten document entitled “Minute of Order” as initialled by me, dated today and placed with the papers NOTING that the words are added to the notation in paragraph 4 as follows “and no admission is made as to the accuracy of any entry recording “data created date” or “data modified date” and that in the proposed column headings attached to the hand written document in the 5th column the word “slice” is added after the word “image” and that in the columns headed “data created date” or “data modified date”  an * will be included referring to a notation at the foot of each date that the dates entered are provided without any assertion that any of the entered dates are proof of the fact that data was either created or modified on the date entered.

7. I DIRECT that the solicitor for the applicant file a clean certified typescript of the said document placed on the court file within 3 business days of the date of these orders in Microsoft Word format.

8. Reserve the costs of all parties of the 8 April 2019.

9. All extant applications be adjourned to 8 August 2019 at 9:30am for mention.

ORDERS MADE BY CONSENT

1. In respect of Paragraph 8.3 of the Minute attached to the Orders made 8 February 2017 for school holidays:

   (a)       School holidays shall commence from the conclusion of the last day the child is required to attend school for the term and conclude at the normal school commencement time on the commencement of the first day the child is required to attend school in the next term and any pupil free day shall be included in the holiday period.

   (b)       The first half and second half of the school holiday periods shall be determined by dividing the number of nights during any relevant holiday period equally between each half, and if there is an unequal number of nights, then the additional night shall be added to the first half.

Telephone

1. That paragraph 17 of the Minute attached to the Orders made 8 February 2017 be discharged and in lieu provide that:

   (a)       Each party shall make the child available for telephone contact with the other parent at any time, by agreement, and failing agreement, each Monday and Thursday at any time between 5:30pm and 6.00pm.  Each party will ensure the child has reasonable privacy during telephone contact and neither party will instruct the child to end telephone conversations at any time save for it reaching 6.00pm, at which time it concludes.  

   (b)       Each party will permit and facilitate the child speaking to the other party, should the child request to do so.

Travel

1. Unless otherwise agreed in writing or ordered by the Court, that Order 12 of the Orders dated 8 February 2017 be discharged and, in lieu, provide that:

   (a)       The parties shall be permitted to travel with the child domestically at any time, provided that the domestic travel coincides with the period that the child does not have to attend school and coincides with the time that the child would ordinarily spend with the travelling parent.

   (b)       Each of the parties is permitted to remove the child from the Commonwealth of Australia, provided that:

   (i)at least 14 days’ prior written notice is provided to the other parent from the date of the intended departure;

   (ii)the travel is limited to the school holiday period; and

   (iii)the travel is within the time that the child would ordinarily spend with the travelling parent.

   (c)       For all international travel, a copy of the full itinerary must be provided to the other party demonstrating travel arrangements for the duration of the trip and any material changes to the itinerary must be directly communicated to the other party, in writing, as soon as reasonably possible.

   (d)       For the purpose of domestic travel or international travel, the child may travel with a responsible adult, in lieu of the travelling parent, provided the travelling parent supplies the full name and contact details of the responsible adult and that the responsible adult:

   (i)is known to the child for a minimum of six months;

   (ii)is supplied with the full name and contact number of the non-travelling parent;

   (iii)is travelling on a Passport with at least six months’ validity;

   (iv)is provided with a travel authorisation document for international travel, signed by both parties, and includes the contact details of both parties; and

   (v)immediately informs both parties of any immigration issue or other emergency.

2. In the event that the child’s time with the father pursuant to Order 8.1 made 8.2.17 concludes on a Monday which is a public holiday or pupil free day then that time shall instead conclude at the beginning of school on the next day.

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 Cadenet & Behrendt 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 SYDNEY

FILE NUMBER: SYC7807/2016

Ms Cadenet

Applicant

And

Mr Behrendt

Respondent

REASONS FOR JUDGMENT

1. These are reasons for judgment in proceeding SYC7807 of 2016.  There are a number of applications before the court seeking, amongst other things, variation of parenting orders made on 8 February 2017 by Monaghan J in the Federal Circuit Court of Australia.  The parenting proceedings relate to X, born in 2011.  X is currently eight years old.

2. The parties have today, by consent, agreed to the variation of a number of the orders made on 8 February 2017.  These reasons deal with the narrow issue of overseas travel to the United States of America at the end of term 2, 2019.  It is not necessary to set out any detailed procedural history or background for the purposes of this judgment. 

3. By her further Amended Application in a Case, the mother seeks an order varying the orders made on 8 February 2017 so that order 13 would be discharged and in lieu thereof would read as follows:

   Notwithstanding order 12, the mother shall be permitted to travel with X to the United States of America annually during the June and July winter school holiday period to commence one week prior to the scheduled school holiday commencement date and to conclude on the school return date for the purposes of visiting X’s maternal and paternal grandparents and the father’s time spent shall be suspended accordingly.

   That X be permitted to travel in the company of any responsible adult if required for the purposes of international travel.

4. The mother proposes to travel to the United States of America one week prior to the end of term 2, 2019.  This obviously will mean the child will miss one week of term 2 at school.  The father does not in principle oppose the proposed travel, except he does not consider that it is in the child’s best interests to miss a week of school.  The independent children’s lawyer takes the same position.  The father also conditions his consent upon receiving the dispensation that he have the child with him for the entirety of the September/October school holiday period.

5. The mother opposes this last proposition on the basis that she contends as part of the wider applications which are also before the Court, that the father poses an unacceptable risk to the child in the sense his conduct may expose the child to pornography.  Those questions are the subject of considerable dispute between the parties and could not possibly be resolved for the purposes of this judgment in relation to overseas travel. 

6. The authorities relating to overseas travel are well known.  The propositions set out in Kuebler & Kuebler (1978) FLC 90-434 and Line & Line (1997) 92-729 remain applicable.  They make clear that in relation to an application involving overseas travel, the Court should give consideration to a number of matters including (a) the length of the proposed stay out of the jurisdiction, the bona fides of the application, the effect on the child of any deprivation of access.  Any threats to the welfare of the child by the circumstances of the proposed environment and the degree of satisfaction in which the Court based its assessment of the parties that a promise of a return to the jurisdiction would be honoured.

7. The question of whether or not the country of destination is or is not a signatory to the Convention on the Civil Aspects of International Child Abduction known as, the Hague Convention, is also relevant.  In this matter, the child has travelled to the USA every year since birth, according to the evidence.  He clearly spends quality time when in the United States, with his extended family on both sides.  There is no suggestion either parent is a flight risk.  The United States of America is a signatory to the Hague Convention.

8. There is no suggestion that the application brought by the mother was not made bona fide.  And as already noted, the father in principle does not object to the travel, although it is conditional and he thinks it should be for a shorter time.  The mother gave evidence that her mother is gravely ill.  She may not live much longer.  This was a primary basis for arguing that the child should miss the last week of term 2. I note here that the child has a close relationship with both his maternal and paternal grandparents.

9. The mother has sought and obtained permission for X to miss school.  It was undisputed, however, that although there is in place presently an interim order for equal shared parental responsibility, the mother obtained that dispensation from the school by approaching the school unilaterally, and without a consultation with the father.  The father argues that the mother has given no proper basis for a permission to travel for the extended period she seeks.

10. He points out that her own evidence shows – and it appeared not to be in dispute – that when travelling to the United States in the past, the mother had not spent the whole time with her parents and nor does she intend to spend the whole time with her parents if allowed to travel at the end of term 2, 2019.  There is in the evidence limited information about the detail of her proposed itinerary.

11. Moreover, I note that the order proposed by the mother is not limited to 2019 but would, if made, apply every year thereafter unless discharged, permitting her to cause the child to miss a week of school every year until he reaches the completion of his schooling. 

12. I am satisfied it is in the best interests of the child to travel.  Having given the evidence and submission of the parties careful consideration, I’m also satisfied that in light of his age, his good academic results, the acquiescence of the school and his maternal grandmother’s illness, it would also be consistent with the child’s best interests for him to travel and for him to miss one week of school for this purpose in 2019.

13. I am not, however, satisfied that any order should now be made permitting this in any future year.  The father, as already noted, seeks a further order that he be permitted to have the entirety of the school holiday period at the end of term 3, 2019.  The mother, as noted, opposes this course on the basis of her allegations about access to pornography.  I’m not satisfied there is sufficient evidence to make any meaningful finding about those matters in relation to this present application in respect of travel.

14. Moreover, as Counsel for the father pointed out, under the existing orders, subject to the mother being able to travel during the entirety of the term 2, 2019 school holidays, the child would spend one half of those holidays with his father and under the existing orders, would spend one half of the term 3 school holidays with his father.  It was common ground that the term 3 school holidays extend for a period of two weeks.  Moreover, under the existing orders, the child would also spend one half of the Christmas holiday period with his father.

15. In those circumstances, I’m satisfied that it is in the best interests of the child that he spend the entirety of the term 3 school holidays in 2019 with his father. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Harper delivered on 10 April 2019.

Associate: 

Date:  9 October 2019