Carick and HONJAS
[2010] FMCAfam 695
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CARICK & HONJAS | [2010] FMCAfam 695 |
| FAMILY LAW – Parenting – interim – international travel – temporary suspension of watch list order – both parents allowed to travel independently with the children. |
| Family Law Act 1975, ss.60CA, 60CC |
| Goode & Goode [2006] FLC 93-286 |
| Applicant: | MR CARICK |
| Respondent: | MS HONJAS |
| File Number: | SYC 3500 of 2010 |
| Judgment of: | Monahan FM |
| Hearing date: | 9 June 2010 |
| Date of Last Submission: | 9 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 9 June 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Boyle |
| Solicitors for the Applicant: | Karras Partners Lawyers |
| Counsel for the Respondent: | Mr Givney |
| Solicitors for the Respondent: | Gonzalez & Co |
ORDERS
THE COURT ORDERS THAT:
The order placing [X] born [in] 1999 and [Y] born [in] 2002 (“the children”) on the airport watch list be discharged for the period 30 June 2010 to 23 July 2010.
The Applicant spend time and otherwise travel with the children to the United Kingdom for the period 2 July 2010 to 12 July 2010.
The Applicant return the children to the Respondent’s care at 12noon on 12 July 2010, with changeover to take place at [B] Railway Station unless otherwise agreed between the parties.
The children return to Australia with the Respondent on or before 21 July 2010.
The Applicant to be responsible for the costs of the children’s airfares and any expenses whilst the children are with him pursuant to paragraph 2 herein and the Respondent be responsible for her own travel expenses and any expenses whilst the children are with her pursuant to paragraph 4 herein.
AND THE COURT ORDERS BY CONSENT THAT:
The parties do all things necessary to obtain Australian passports for the children at the Applicant’s expense.
Upon return of the children to Australia, the children’s passports be held in the possession of the Respondent.
The Applicant provide the Respondent all addresses and contact telephone numbers of where the children will be staying whilst with him in the United Kingdom prior to departure.
The Applicant facilitate telephone communication between the children and the Respondent each day whilst they are in his care, in accordance with the current orders.
The Applicant personally supervise the children and not leave the children in the care of any third party during their stay in the United Kingdom.
AND THE COURT FURTHER ORDERS THAT:
The matter be adjourned to 12 August 2010 at 9.30am before this Court for further mention.
The parties’ costs of today be reserved.
AND THE COURT NOTES THAT:
(A)Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Carick & Honjas is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 3500 of 2010
| MR CARICK |
Applicant
And
| MS HONJAS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by MR CARICK (“the father”) seeking various parenting orders on a final and interim basis in relation to [X] born [in] 1999 and [Y] born [in] 2002 (“the children”). His application is supported by his affidavit sworn and filed on 3 June 2010, and he was legally represented today by Ms Boyle.
The respondent is MS HONJAS (“the mother”) who, in her response filed today, 9 June 2010, opposes the interim orders sought by the father and seeks different interim orders in respect of the children. She is also seeking the dismissal of the final orders sought by the father. Her response is supported by her affidavit sworn and filed today,
9 June 2010, and she was legally represented today by Mr Givney.
Background
The parties agree that they were married [in] 1995 and began cohabitation a year prior. They separated in late 2002 and were divorced on 20 December 2004.
In respect of parenting matters, orders were made by Barnes FM, with the consent of the parties, on 10 May 2004 which provided for, among other things:
·joint parental responsibility between the parties over the children,
·the children to live with the mother; and
·the children to spend defined periods, or at other times as agreed, with the father.
The issues
The issues today focus solely on the interim orders sought respectively by the parties. In summary, the father is seeking to travel with the children to England to enable them all to attend his sister’s wedding on 10 July 2010. I understand it will take place in or around [omitted]. Also of relevance is the paternal aunt’s wish that the children not just attend the wedding, but act as “flower girls” in the wedding party. The father seeks orders to travel with the children from 2 July 2010 to
19 July 2010 inclusive and will cover the cost of the children’s travel and stay whilst in the United Kingdom with him.
The mother, in her response, is agreeable to the children travelling to the United Kingdom and spending time with the husband during that trip from 4 July 2010 to 11 July 2010 inclusive. She proposes that she travel with the children to England and deliver the children to the father on 4 July 2010 at an agreed place and collect the children on
11 July 2010, also at an agreed place, and then return with the children to Sydney on or about 18 July 2010. In other words, she proposes the children spend seven days with the father in England to facilitate their preparation and attendance at the paternal aunt’s wedding, and then that she spend seven days with the children in the United Kingdom before returning back to Australia.
I note that the New South Wales school holidays for the end of second term commence on Friday, 2 July 2010 and end on Friday, 16 July 2010. Hence, both parties are proposing that the children more or less travel during the school holiday period.
The father has indicated that he is willing to consent to paragraphs 7 to 11 inclusive of the interim orders sought by the mother. They are namely:
“(7) That the parties do all things necessary to obtain Australian passports for the children and the costs be paid for by the father;
(8) That upon return of the children to Australia, their passports be held in the possession of the mother;
(9) That the father provide addresses and contact telephone numbers of where the children will be staying whilst with him in the United Kingdom prior to departure;
(10) That the father facilitate telephone communication between the children and their mother each day whilst they are in his care which is in accordance with the current orders; and
(11) That the father personally supervise the children and not leave the children in the care of any third party during their stay in the United Kingdom.”
In addition, both parties agree that should an airport watch order be in existence, and as I have ascertained it is, it be lifted to allow the children to travel to and from the United Kingdom during the July 2010 school holiday period or such time as the Court decides.
One unusual feature of this case is that the mother is proposing to fund her own trip to travel with the children.
The parties’ submissions
Ms Boyle, for the father, submitted that the children had developed a good relationship with the father, despite the fact that the parties’ separation occurred whilst the children were quite young. She submitted that the mother’s concerns in respect of the anxiety the children may suffer from being away from her for approximately
17 days was unjustified and that the Court should note that the children are now aged 11 and eight respectively. Ms Boyle submitted that the application was necessary because of the mother’s resistance to increase the father’s time with the children.
In relation to the specific travel issue today, Ms Boyle submitted that the mother’s proposal, using Ms Boyle’s words, “invite a level of difficulty” and just would not work. This is not a case where either of the parties have concerns about the children not returning to Australia.
In his response, Mr Givney, for the mother, submitted that the mother had indeed sought to engage with the father about making suitable arrangements for the proposed trip. He submitted that the mother had not sought to thwart the children going, but had concerns arising from the reality that they had never spent such a long period of time away from her since their birth. He submitted that the longest period of time that the children had spent time away from their mother was five nights and that that had only occurred recently.
Mr Givney said that the mother did not dispute that the father had established a good relationship with the children and stated that this reflected well upon the mother facilitating such. Mr Givney pointed out that the matter today had not had the input of an expert witness, such as a psychologist or social worker, to determine whether the orders proposed by either of the parties were appropriate to the children’s ages and prevailing circumstances.
He submitted that the mother’s proposal provided, in his words, “a safe bet,” and that would enable not just the children to travel and attend their aunt’s wedding with the father and spend time with their paternal extended family, but also to reduce any risk of trauma associated with the children travelling over and back and spending more than five nights with the father.
Mr Givney also pointed out that whilst the mother sought to travel over and back with the children, an alternate course might be for one parent to travel over with the children and the other parent to travel back with the children.
Mr Givney also made some submissions in light of several of the factors arising under s.60CC(3) of the Family Law Act 1975 (“the Act”). Overall, he suggested that the “safe option” sought by the mother would be to:
i)allow the children to travel with both parents overseas for the first time;
ii)enable the children to enjoy their time overseas with both parents individually; and
iii)that it was consistent with the best interest principle.
Ms Boyle, in reply, submitted that the “trauma” argument was being overstated and that what the father was proposing in terms of the length was less than many parents enjoyed over the long school holiday period with their children.
Law
The Full Court of the Family Court decision of Goode & Goode (2006) FLC 93-286 guides this Court’s approach in making interim decisions and interim orders in relation to parenting disputes. At paragraph 81 the Full Court stated, and I quote:
“In making interim decisions, the Court will still often be faced with conflicting facts, little helpful evidence, and disputes between parents as to what constitutes the best interests of the child.”
This matter is such a case. More specifically, this raises the reality that the Court cannot fully determine issues of credit today, as the evidence being presented by the parties to the Court is not being tested by cross-examination.
That having been said, the Full Court also in paragraph 81 of the Goode decision went on to say:
“However, the legislative pathway must be followed.”
In other words, the relevant provisions of the Act post 2006 shared parenting amendments must be followed in an interim hearing.
There is no issue of equal shared parental responsibility to be determined today. The dispute is simply limited to the issue of the children’s time with their father and under what circumstances that time will be spent when they travel to the United Kingdom.
In paragraph 82 of the Goode decision, the Full Court reminds Courts such as this that in determining interim cases, the starting point is to identify the competing proposals, identify the issues in dispute, and identify any agreed or uncontested relevant facts, and I have previously canvassed these this afternoon.
At this point, let me note that s.60CA of the Act provides:
“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.”
To determine the children’s best interests, the Court must consider the primary considerations or factors set out in s.60CC(2) of the Act and the additional considerations referred to in s.60CC(3), where relevant. I will briefly canvass these now.
Primary considerations: s.60CC(2)
Section 60CC(2)(a) of the Act requires the Court to consider:
“The benefit of the child having a meaningful relationship with both of the children’s parents.”
Let me note that meaningful does not mean equal, but it clearly signifies that both parents should be involved with their children and consequently signifies an expectation of time to be spent. The right of a child or children to spend time with each parent and extended family is clearly a right they have under the Act.
The Court is also required under s.60CC(2)(b) of the Act to consider:
“The need to protect the child from physical or psychological harm and being subjected to, or exposed to, abuse, neglect, or family violence.”
There is no doubt that it would be in the children’s best interests to develop a meaningful relationship not just with their mother, but with their father. That needs to be balanced in respect of protecting the children from any physical or psychological harm and the like. It does appear, on the evidence before me, that the children have:
·never travelled overseas before; and
·never spent more than more than five nights away from the mother, although this may be contested by the father.
Additional considerations: s.60CC(3)
As to the additional considerations, it is worth noting that under s.60CC(3)(a) , the Court is required where relevant to consider issues such as the views of the child. The Court only has the views before it as stated by the parents or the parties in this case. It has not been possible to obtain those views using a counselling or related process today. Nevertheless, I suspect that the children would be excited by this travelling adventure to the United Kingdom, and I further suspect that they would want to please both their parents.
As to the nature of “the relationship between the child and each of the child’s parents”, the parties appear to have avoided Court proceedings over the last six years. That is a point of interest to the Court.
The Court is also required to consider “the willingness and ability of each of the parties to facilitate a close and continuing relationship”. I am satisfied that on the evidence before me, despite this current dispute, both parties have attempted to facilitate a good relationship between the children and the other parent.
The Court is also required to consider “the likely effect of any changes in the child’s circumstances”. Both parties agree in this case that the children should travel; they disagree on the specifics.
Conclusion
I note that the father has agreed to paragraphs 7 to 11 as proposed by the mother, so consequently those orders shall be made today.
As to the airport watch list order, I have indicated that my Chambers has ascertained that there is a current airport watch list order in place arising from the orders made in 2004. Consequently, the order proposed by the mother in paragraph 6, with some slight variation that I will refer to in a moment, should also be made today.
As to their disagreement, I am satisfied that the children should not only travel to the United Kingdom, but they should spend substantial and significant time with the father and his extended family whilst they are there. That having been said, I am not satisfied that the
17 continuous days proposed by the father is in their best interests. Consequently, there will be orders to reflect an outcome that the children travel with the father to the United Kingdom on or after 2 July 2010 and that they should spend time with him for 10 consecutive days, until 12 July 2010, whereupon they should be returned to the mother’s care in the United Kingdom at an agreed place and, failing agreement, [B] Railway Station and, failing an agreement as to time, 12 noon on that day. That will enable the mother to spend at least seven days with the children in the United Kingdom, assuming she still proposes to fly home on 18 July 2010.
Whilst I am not suggesting the children should miss their schooling, I can see the benefit of the mother and the children, should they so choose, spending up to 10 days together in the United Kingdom before returning to Australia. Consequently, the orders I will make today will reflect that option.
Whilst the father will be responsible for the return airfares of the children and for their costs whilst spending time with him in the United Kingdom, the mother will, of course, bear the costs of her own travel to and from the United Kingdom and to collect the children in [B], and for the children’s costs whilst they are spending time with her in the United Kingdom.
The Court will not be dealing with any other aspect of this matter today but will be given a further mention date. On that occasion, we can consider the respective applications for final orders.
I reserve the right to settle to reasons for this interim decision.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 22 September 2010
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