Canvil and Merle

[2016] FamCA 358

FAMILY COURT OF AUSTRALIA

CANVIL & MERLE [2016] FamCA 358

FAMILY LAW – CHILDREN – international travel – whether the mother ought to be permitted to travel overseas with the children.

APPLICANT: Mr Canvil

FIRST RESPONDENT: Ms Merle

INDEPENDENT CHILDREN’S LAWYER: Dooley Solicitors

FILE NUMBER: BRC 4803 of 2012

DATE DELIVERED: 22 April 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE:

29 February 2016 and

1, 2 and 3 March 2016,

18 April 2016

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE FIRST RESPONDENT: Mr Hackett

SOLICITOR FOR THE FIRST RESPONDENT: Evans & Company Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Black (excluding 18 April 2016)

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Dooley Solicitors (excluding 18 April 2016)

Orders

Amended on 16 May 2015 pursuant to rule 17.02 of the Family Law Rules 2004

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The mother is permitted to remove the children, L, born … 2006 and F, born … 2009 from the Commonwealth of Australia for the purposes of a holiday provided that:

   (a)the duration of the travel does not exceed four (4) weeks; and

   (b)that the proposed travel dates occur in June/July 2016 and incorporate the children’s end of Term 2, 2016 school holiday period; and

   (c)no less than thirty (30) days prior to the proposed travel, the mother provide to the father notice in writing of the proposed dates of departure from and return to Australia, the locations to be visited and the details of the accommodation at which the child will be staying; and

   (d)not less than fourteen (14) days prior to the scheduled departure, the mother provide the father with a copy of the itinerary for the trip with this to include, but not be limited to, the following information: the departure and return times and dates; a contact telephone number for the children whilst they are travelling and details of addresses at which the children will be based during the travel.

2. The children’s time with their father pursuant to the Orders made 16 July 2015 is suspended during the time in which they are out of the country pursuant to these Orders.

3. For the purposes of the children’s international travel, pursuant to Clause 1 herein, the Registry Manager of the Family Court of Australia at Brisbane, release the children’s Australian passports to the mother.

4. Within seven (7) days of the children’s return to Australia, the mother forthwith deposit the children’s passport with the Registry Manager of the Family Court of Australia at Brisbane and it is requested that such passports be held pending further order of the court, or the written consent of both parties.

5. When the children are out of the Commonwealth of Australia, the mother shall facilitate the children’s communication with the father by Skype or telephone not less than twice per week.

AND IT IS FURTHER ORDERED THAT

1. Pursuant to s 65DA(2) and s 62B 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 and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

NOTATION:

This Order has been amended pursuant to Rule 17.02 of the Family Law Rules 2004 by amending clause 1(b) to record the correct year.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Canvil & Merle 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 BRISBANE

FILE NUMBER: BRC 4803 of 2013

Mr Canvil

Applicant

And

Ms Merle

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. On the final day of the trial between the parties, in relation to both parenting and property matters, that occurring on Monday, 18 April 2016, the mother, by way of oral application, advanced by Mr Hackett of Counsel who appeared on her behalf, sought that I make interim orders to permit the children to travel with her to Europe for the purpose of a holiday during the upcoming June and July school holiday period.  It was proposed on her behalf that the travel overseas occur for a period of no more than four weeks and that this would occur during the entirety of the children’s three-week school holiday period and also during a further week of term time, either before or after that school holiday period.

2. It is apparent from the material that Ms Merle’s solicitors had previously sought to obtain Mr Canvil’s permission for this travel to occur.  However, regard to his response in an email exhibited to a most recent affidavit of Ms Merle’s suggests that that is somewhat unclear.  He certainly addressed in it, broadly, his attitude to the children travelling with either of their parents overseas in the future, rather than, perhaps, this particular holiday travel sought by Ms Merle.  Mr Canvil’s position was, at least to some extent, clarified during the course of submissions I received on Monday of this week about this issue. 

3. During those submissions, it seemed to me that he made it plain that he would agree to the children travelling with the mother overseas if he were also permitted to take them overseas, albeit with the assistance of and under the supervision of a paid supervisor.  He did not, though, oppose the children’s overseas travel for the purpose of a holiday and he did not, it seemed to me, in his email response, raise any particular concerns about their safety at this particular time.  The Independent Children’s Lawyer, by written communication, has indicated that he does not oppose an order being made to permit the children to travel overseas for a holiday in the middle of this year.

4. It is relevant to note that Ms Merle has previously travelled with the children to New Zealand in about October 2015.  Whilst the evidence during the course of the trial certainly suggested that there were certain difficulties associated with their communication with their father whilst overseas, Ms Merle obviously returned them to Australia at the conclusion of the holiday period.  It is relevant in determining whether overseas travel for holiday purposes is something which is in the children’s best interests to note that each of the parents were born in Europe and each of them spent a significant period of their lives living there, together with the time they spent living in Europe.

5. It is relevant to note that L was born in Europe and, in fact, lived in Europe for the first couple of years of his life.  Whilst Mr Canvil has raised in his material concern that Ms Merle may not return to Australia with the children, this concern seems to me to have arisen particularly in the context of his response to her application for a variation to the child support assessment seeking the payment of lump sums.  It appeared from his submissions, during the course of the trial, that the fact that this was the case may be thought to demonstrate or indicate that she intended to apply whatever sum might be ordered to be paid in support of what he sees as being a goal of hers to remove the children from Australia on a permanent basis.

6. Now, it is obvious that no final orders have yet been made in these proceedings.  It is also relevant to note that Ms Merle has lived in Australia since January 2007.  She undertook the studies necessary to ensure that her speciality was recognised in this country.  She has established a business in Region D and continues to practice there.  She owns real property in this State and the children attend a school in Region D.  It appears, then, that, on that evidence, there is, I think, an appropriate basis to conclude that she is unlikely to refrain from returning the children to Australia at the end of the holiday travel she proposes to take in the middle of this year.

7. In addition to that, of course, this matter remains awaiting its finalisation by way of delivery of orders and final Reasons for Judgment and I think it highly unlikely that Ms Merle would take any such precipitous action whilst that is the case.  For these brief reasons, then, I intend to permit the children to be removed from Australia to travel for a holiday to Europe with their mother during the June/July period of this year.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 22 April 2016.

Associate:                 

Date:    22 April 2016