Christler and Fabian
[2010] FMCAfam 1468
•22 December 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHRISTLER & FABIAN | [2010] FMCAfam 1468 |
| FAMILY LAW – Parenting – hearing of discreet issue – holiday travel to a non-convention country. |
| Family Law Act 1975, ss.60CA, 60CC, 62B, 64B, 65DA Family Law (Child Abduction Convention) Regulations 1986, Schedule 2 |
| Goode & Goode (2006) FLC 93-286 Rice & Asplund [1979] FLC 90-725 |
| Applicant: | MS CHRISTLER |
| Respondent: | MR FABIAN |
| File Number: | SYC 7281 of 2010 |
| Judgment of: | Monahan FM |
| Hearing date: | 21 December 2010 |
| Date of Last Submission: | 21 December 2010 |
| Delivered at: | Sydney |
| Delivered on: | 22 December 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Campton |
| Solicitors for the Applicant: | Edwards Family Lawyers |
| Counsel for the Respondent: | None |
| Solicitors for the Respondent: | Price & Company Solicitors |
ORDERS
THE COURT ORDERS THAT:
The paragraph three (3) of the interim orders sought in the Amended Initating Application filed by the Applicant Mother on 17 December 2010 regarding travel with [X] born [in] 1998 to India (“the Applicant Mother’s interim application”) be dismissed.
The Respondent Father’s costs associated with the Applicant Mother’s interim application be reserved.
AND THE COURT NOTES THAT:
(A)All parenting orders remain in full force and effect.
(B)The matter remains listed for mention hearing on 3 March 2011 at 9:30am.
(C)Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, 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 Christler & Fabian is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 7281 of 2010
| MS CHRISTLER |
Applicant
And
| MR FABIAN |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by MS CHRISTLER (“the mother”) against
MR FABIAN(“the father”) who is seeking various parenting orders in relation to the child [X], born [in] 1998 (“[X]”). More specifically, in respect of the parenting dispute, the mother is seeking final orders to achieve the following outcomes:
·
a discharge of various orders made by the Family Court on
3 October 2003;
·a relocation with the child to Perth in Western Australia, and the enrolment of the child in the [M] School in [Perth], Western Australia; and
·that the child spend various defined periods with the father.
The mother’s application is supported by her affidavits sworn on
17 November 2010 and filed the following day and her affidavit sworn on 14 December 2010 and filed the following day. Also relevant to this particular interim decision is the mother’s request for permission to travel with the child to India on 23 December 2010 – that is, tomorrow – and return on 23 January 2011. The Court notes that the mother’s Initiating Application was filed on 18 November 2010, but that she subsequently filed an Amended Initiating Application on 17 December 2010. At the hearing on 21 December 2010 relating to the discrete issue which will be elaborated on further herein, she was legally represented by Mr Campton of Counsel.
The father, in his Response filed on 15 December 2010, opposes the orders sought by the mother. In relation to parenting matters, the father is seeking orders to achieve the following outcomes:
·“joint parental responsibility” for [X];
·that [X] live with the father and spend time with the mother for defined periods, including alternate weekends and half of school holidays; and
·a restraint upon the mother not to remove the child from the Commonwealth of Australia.
The father relies on his affidavits sworn in these proceedings, firstly, on 13 December 2010 and filed on 15 December 2010 and, more recently, his affidavit sworn and filed on 20 December 2010; as well as the affidavit of his wife, Ms F, sworn and filed on 20 December 2010. At the interim hearing, the father was legally represented by his solicitor, Mr Price.
Background
The parties commenced a relationship, it would appear, in 1996 and separated in 2001. Their relationship appears to have been, using the husband’s words in his affidavit, “an off and on relationship”. The relationship certainly produced a child, [X], who was born in 1998. The mother is not currently in a relationship, according to her evidence, and the father has re-partnered, marrying his wife, Ms F, in 2004. The father has two children from this marriage: [Y], apparently now aged four (4), and [Z], age two (2).
The parties have a relatively long history before the Family Court of Australia. The father commenced proceedings in 2002, from my reading of the file, and interim consent orders were made on 4 June 2002 by Registrar Gersbach for [X] to live with the mother and spend time with the father once a month from a Friday till Monday and each week from Thursday overnight to Friday. It would appear that an order was also made on 5 August 2002 by Judicial Registrar Johnston, as he then was, seeking the appointment of what would now be called an Independent Children’s Lawyer (“ICL”).
The spend time arrangements that were implemented in the June 2002 orders were varied by an order made by Judicial Registrar Loughnan, as he then was, on 19 September 2002. These orders appear to have followed the filing of a contravention application by the father that was subsequently withdrawn, that contravention application, it would appear, having been filed on 17 July 2002. The spend time arrangements implemented in the orders of 19 September 2002 provided as follows:
“1. That order 2 made by this Court by agreement on 4 June 2002 be varied until further order of the Court as follows:
(a) That for a period of two months from today’s date, the father have contact with the child, [X], born [in] 1998, unless the parties otherwise agree, each Sunday commencing at 9 am and completing at 5 pm.
(b) That the mother deliver the child to the father at the police station at [address in Sydney omitted], and that the father deliver the child to the mother at the same address at the conclusion of each such occasion.
(c) That at the expiration of a two-month period, order 2 a, b and c of the orders made on 4 June 2002 resume unless the Court orders otherwise.
(d) That the first occasion of weekly contact pursuant to the order recommence on Friday, 22 November 2002.”
There were also orders made for the father to arrange to undertake an anger management course and there were orders and notations reminding the parties about their obligations under the Act.
Shortly thereafter, on 21 November 2002, the mother obtained an Apprehended Violence Order from [omitted] Local Court that lasted for 12 months.
The mother appears to have herself filed a contravention application on 21 February 2003, but that was dismissed by then Judicial Registrar Loughnan on 17 March 2003. Interestingly, in the orders made that day, his Honour made the following order:
“2. That the mother pay to the solicitor of the father costs of and incidental to these proceedings, assessed in the sum of $600 and that payment be made not later than 14 days after payments of child support received by the mother is fully up to date.”
The matter subsequently came before the Court on 3 October 2003, and it would appear that final orders were made by consent (“the final orders”). The Court cannot ascertain from the orders exactly which Judge approved the orders, but clearly the orders were made on that day. In summary, the final orders provided as follows:
“2. [That the parties have] joint long-term responsibility for the child’s welfare, wellbeing and development.
“3. That the father have contact [which, of course, was the term used at that time] on the following basis: firstly, on each alternate weekend from after school Thursday, when the father shall collect the child from school, until the following Monday before school, when the father shall deliver the child to her school, commencing forthwith, and in the off-week, from after school Thursday, when the father shall collect the child from school and return her for school the following Friday morning.”
In addition, the final orders provided for school holiday time – which, apart from some stated exceptions, was effectively an equal time arrangement – and for telephone contact between the child and both parties.
Perhaps relevant to these proceedings, the final orders also provided:
“7. That the mother and father be and are hereby restrained from removing the said child from Australia without the written consent of the other parent.”
On 22 December 2005, the father filed an Application in a Case seeking orders restraining the mother from residing with the child outside the Sydney metropolitan area. The father’s affidavit sworn on 16 December 2005 and filed on 22 December 2005 outlines his assertions that, at the time, the mother proposed to move with the child to Melbourne with her then partner, [name omitted].
In the mother’s affidavit sworn and filed on 25 January 2006, she states:
“4. I have no intention of relocating in the immediate future, but there may be a change of plan in this regard, depending on the circumstances of my fiancé’s employment in Melbourne.”
“5. I do not anticipate that this change would occur until in or about April/May 2006, and if it was to occur, then I would be seeking to have the matter dealt with in the first place by way of mediation, in accordance with the Family Court Rules, and failing agreement, that it be determined by the Court by way of a final application in this regard for a relocation to Melbourne.”
When the matter came before Judicial Registrar Johnson on 31 January 2006, his Honour, upon noting that the mother had no immediate plans to change her residence from the Sydney metropolitan area, made the following orders:
“1. That pending further order, the mother is restrained from changing the residence of the said child from the Sydney metropolitan area; and
“2. That all costs are reserved.
Following this his Honour also noted that the mother intended to file an application not sooner than the midyear for a relocation order. From the file, it is not readily apparent whether the mother did that, although it does not appear that she did so, nor can it be ascertained whether the costs application was ever dealt with.
The current application before the Court was filed on 17 November 2010, and in that application, the mother seeks to relocate to Perth in Western Australia. However, the issue before the Court today is the question of an overseas trip she proposes to take with the child tomorrow to India returning in late January 2011. The current application was returnable in the duty list last Wednesday,
15 December 2010. That duty list, it would be fair to say, was a particularly difficult and challenging one for the Court, and it was indicated to the parties that the Court could not entertain any hearing of the application on that day.
The mother pressed, however, for an interim hearing over the objections of the father. It was determined that at this time the Court would only determine the issue of the overseas travel on an interim basis but not the interim relocation order sought. That was noted this in notation A to the Orders of this Court made on 15 December 2010.
Issues
Notation A to the orders made on 15 December 2010 clearly articulates the purpose behind the interim hearing as being:
“… to consider a discrete issue of whether the current parenting order should be varied to enable the applicant to travel with the child from 23 December 2010 to 27 January 2011.”
The discrete issue, of course, is the travel to India via Western Australia.
Agreed and Disagreed Facts and Proposals
There are final parenting orders currently in place affecting the parties and [X]. Despite the decision of the Full Court of the Family Court of Australia in Rice & Asplund [1979] FLC 90-725, it would appear that both parties are seeking changes to the existing parenting orders. As to what the she is seeking for the purposes of the discrete hearing, at the commencement of the hearing the mother, through Mr Campton, handed to the Court a minute of orders sought. Those orders sought were as follows:
“1. That the applicant mother be permitted to take the child, [X], born [in] 1998 (‘the child’), overseas on holiday to India departing Australia on 23 December 2011 or such later date as the applicant mother is able to arrange and returning to Australia on 23 January 2011.
“2. That the respondent father immediately after the making of these orders sign the child’s visa application to permit the child to travel to India and provide a copy of this passport to the applicant mother’s solicitor.
“3. That the applicant mother return the child to Sydney on
24 January 2011, and thereafter, the respondent father can have the care of the child until 30 January 2011.”
The parties agree (or do not appear to be in any significant disagreement) that the current final orders made on 3 October 2003 provided for:
·both parties to have what was then described as “joint long-term responsibility” with respect to [X]’s welfare, wellbeing and development;
·[X] to spend half the school term and long summer school holidays with each of the parties;
·the parties to be restrained from removing [X] from Australia without the written consent of the other parent; and
·when read together with the orders made on 31 January 2006, the mother to be restrained from changing the residence of [X] from the Sydney metropolitan area.
The parties also agree that [X] has spent time overseas with the mother on a number of occasions. They also agree that the parties have been negotiating for [X] to travel with the mother to India for some time prior to the commencement of these proceedings. There also appear to agree that [X] has spent virtually the entirety of the September/October 2010 school holidays with the father.
However, the parties indicated that they are in disagreement in respect of the following:
·whether [X] should be able to travel with the mother to India tomorrow;
·whether the mother should be able to relocate with [X] to Western Australia, although, as previously noted, this was not an issue for consideration in the proceedings before the Court at present, and the Court will not be entertaining any change to the orders made on 31 January 2006 in respect of this today.
The Parties’ Submissions
The mother, through her Counsel, Mr Campton, and the father, through his solicitor, Mr Price, each gave the Court submissions. For reasons stated in Court, no cross-examination of the parties in relation to this discrete issue was allowed. The submissions were reasonably extensive and took the entirety of the one-hour period that had been allocated for the hearing.
The mother
Mr Campton, for the mother, tendered three documents at the commencement of his submissions:
·firstly, a section 60I Certificate dated 7 December 2010, which would clearly indicate that the parties have had family dispute resolution but that the family dispute resolution practitioner did not consider further dispute resolution to be appropriate. That became Exhibit “AM1”;
·secondly, a schedule presumably prepared by the mother or her legal representatives in which she lists the overseas trips taken by her and [X] since 2002 and indicates whether those countries that that her and [X] visited were members of the Hague Convention on the civil aspects of child abduction (“the Convention”) or not. That became Exhibit “AM2”;
·
thirdly, an email exchange between the parties dated
26 November 2010 which attaches, inter alia, details of the mother’s and [X]’s proposed air flights to and from India via Perth. That became Exhibit “AM3”.
All three documents were allowed into evidence despite the father objecting to the tender of Exhibit “AM2”. Having considered the objection, the Court overruled it but noted that its relevance was a question of weight for the Court to determine.
The thrust of Mr Campton’s arguments was that there was a history of overseas travel by the mother and [X] to countries that included non-Hague Convention countries and that the father’s refusal to consent on this forthcoming occasion was unreasonable. Mr Campton submitted that the father had agreed to the overseas trip but that he had, as it were, reneged on his agreement. The mother had allowed the father additional time or makeup time in advance, that is, the entirety of the September/October 2010 school holidays. That said, the mother conceded that she was in Perth during that period. Mr Campton asserted that the father’s concerns about travel to India were not genuine and that his fears for [X] being retained on return route to Perth were, in Mr Campton’s words, “a red herring”. Mr Campton pointed to Exhibit “AM3” to provide the Court comfort that [X] would be returning to Sydney after the trip to India. He assured the Court that the mother was also flying back to Perth with [X] on QF [omitted] on 24 January 2011 despite the itinerary clearly stating that [X] would be travelling as an unaccompanied minor.
[X] is aged 12. The Court notes from the Qantas website the conditions for travel as an unaccompanied minor. In the column marked ‘12 to 15 Years Inclusive’, which is applicable to [X], it states:
“Children aged between 12 and 15 years can travel as unaccompanied minors only at the request of their parent or guardian. If no request is made, there will be no special arrangements.”
Exhibit “AM3” speaks for itself. It appears that a request was made by the mother, presumably, for [X] to travel as an unaccompanied minor.
Mr Campton also submitted that the mother asserted that the plane flights she had booked to India via Perth were cheaper than if she purchased a flight from Sydney direct.
The father
Mr Price, for the father, disputed many of the aspects of the mother’s submissions. Mr Price submitted that, given the conflict in evidence between the parties and given the nature of this particular hearing, the Court would not be in a position to make a finding as to credibility. Mr Price asserted that there were credibility gaps certain of the mother’s submissions, particularly with regard to the views of [X] and whether the cost of a plane ticket was cheaper for travel via Perth rather than direct from Sydney.
As to [X]’s best interests, Mr Price made the following submissions:
·firstly that there was no evidence as to why this particular trip was, to use his words “critical for either of the mother or the child”.
·secondly, the destination raised some concerns and, in this respect, Mr Price submitted that the Australian Federal Government’s travel warning website, as of 21 December 2010, listed India as warranting a “high degree of caution” as a travel destination; and
·thirdly, that the mother’s credibility was very much in issue in these proceedings. In this respect, Mr Price pointed to the various assertions made by the mother that a visa was needed on or before 15 December 2010 to allow the trip to occur and to the fact that the mother had enrolled [X] in a school in Perth without the knowledge of the father.
Overall, Mr Price asked the Court to accept that the father’s decision to withhold his consent was made in the context of the mother’s subsequent decision to seek to relocate to Perth with [X] and his fear that she will not return with the child to Sydney if this trip proceeds. Mr Price also submitted that the mother had not provided the father with any accommodation details for the trip, that there were risks in allowing the mother’s application and that, consequently, the Court should err on the side of caution and enforce the current orders.
Law and Discussion
All parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975 (“the Act”). Parenting orders are defined in s.64B of the Act. Parenting orders deal with where a child is to live, time a child is to spend with another person or otherwise allocate parental responsibility in relation to the child. Section 60CA of the Act provides:
“In deciding whether to make a particular parenting order in relation to the child, a court must regard the best interests of the child as the paramount consideration.”
Section 60CA through s.60CC of the Act deal with how the Court determines the best interests of a child. The most relevant to today’s proceedings are the primary considerations in s.60CC(2) and the additional considerations in s.60CC(3), where relevant. These will be considered briefly in a moment.
As to interim hearings, the Full Court of the Family Court of Australia, in the case of Goode & Goode (2006) FLC 93-286, guides this Court’s approach when making interim decisions and interim orders in respect of parenting disputes. At this point, it is noted that at paragraph 81 of the decision, the Full Court stated:
“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.”
Clearly this matter is such a case. More specifically, it raises the reality that, generally speaking, a Court cannot fully determine issues of credit at an interim hearing as the evidence being presented by the parties is not tested by cross-examination. That having been said, the Full Court made it very clear in that decision that the legislative pathway had to be followed. In other words, the relevant provisions of the Act, post the 2006 Shared Parenting amendments, must be followed.
There is considerable distrust and animosity, it would appear, between the parties in this case, and they have a long history before this Court. No doubt the history of this particular dispute or the broader dispute will be the subject of the evidence and cross-examination at a final hearing, should it be needed. Both parties seek the current joint parental responsibility order to continue. Whilst both seek changes to the current parenting orders, which would automatically trigger s.65DAA of the Act, the Court does not propose to consider those issues today. It will only consider the overseas travel issue and, in particular, the mother’s proposed trip to India this week.
Returning to the Goode decision, at paragraph 82, the Court sets out the approach that Courts should take in determining interim cases, and clearly this Court is required to consider the competing proposals, identify the issues in dispute, and identify any agreed or uncontested relevant facts before applying the paramountcy principle.
Primary considerations: s.60CC(2)
Under s.60CC(2)(a), the Court is required to consider:
“The benefit to the child of having a meaningful relationship with both of the child’s parents.”
At this point, let me note that “meaningful” does not mean “equal”, but it clearly signifies that both parties should be involved with their child and consequently signifies an expectation of time to be spent. The right of a child to spend time with each parent and extended family is the right of the child’s. Consequently, the Court will, in all likelihood, need to give some considerable weight to this factor at a final hearing, should it be needed.
But in respect of the discrete issue before me, a trip of less than one month for a child aged twelve and a half years is not likely to impact upon a meaningful relationship being developed with either parent. Of course, the proposed relocation is a separate question and not one for determination today. If [X] were not to return to Sydney following the proposed trip, then that may adversely impact upon a meaningful relationship with the other parent, the father in this case.
The Court is also required under s.60CC(2)(b) to consider:
“The need to protect the child from physical or psychological harm of being subjected to or exposed to abuse, neglect or family violence.”
There is no doubt that it would be in [X]’s best interests to develop a meaningful relationship not just with her mother, but with her father. However, that needs to be balanced in respect of protecting a child from any harm and the like. The father is, of course, concerned that the mother may not return [X] to Sydney after the proposed holiday to India. He was also concerned that India is not a signatory to and has not otherwise acceded to the Convention. India is clearly not listed as a convention country in Schedule 2 of the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”).
Whilst there have clearly been trips taken by [X] with the mother since 2002, it is noteworthy that only two trips, according to Exhibit “AM2”, have occurred since 2006, those being on 18 February 2006 and
20 April 2010. These trips were to Fiji. According to Schedule 2 of the Regulations, Fiji was a convention country as of 1 May 2000. The Court notes that the mother asserts that Fiji joined between 2006 and 2010. According to the Hague Convention website, Fiji lodged its documents of accession in 1999. Consequently, it would appear that given the Regulations, Fiji was a convention country at all times when the mother went there with [X].
Regardless, it is clear that despite recent political unrest in Fiji over the last few years, it remains a popular and affordable travel destination for Australians. The Court notes that the current Federal Government listing for Fiji in respect of travel advice also contains the same caution as it has for India: a “high degree of caution”. But of course, the Court is not in a position to ascertain what the travel warnings were at either of the times that [X] travelled to Fiji on previous occasions.
Additional considerations: s.60CC(3)
With respect to the additional considerations in s.60CC(3), the Court would simply note that issues such as any views expressed by the child, the nature of the relationship of the child with each of the child’s parents, the willingness and ability of each of the parents to facilitate a close and continuing relationship between the child and the other parent, and the extent to which each of the child’s parents has fulfilled or failed to fulfil the responsibility of parents would be fleshed out in the fullness of time at the final hearing. The family report and the submissions of the ICL would be crucial to the Court reaching a decision which will finally determine these matters for the parties if they are unable to do so. However, in respect of the issue before the Court today, the Court notes the conflict in evidence of the parties in respect of [X]’s views.
Clearly, the Court also is required to consider the likely effect of any changes in [X]’s circumstances. The Court does not propose any changes to the current parenting orders, save for a consideration of this discrete issue of overseas travel and the mother’s proposed trip overseas to India tomorrow.
As to any other fact or circumstance, the Court does have some concerns about why the mother chose to travel to India via Perth. There is no independent evidence before the Court that such a travel itinerary is more cost effective. Moreover, the evidence from Exhibit “AM3” would raise the prospects that:
·firstly, the mother will not be travelling with [X] on a flight from Perth to Sydney;
·secondly, this booking was made separately to the booking for the return flight to Perth to India; and
·thirdly, this booking, being made on 25 November 2010, was clearly made after these proceedings were commenced.
Conclusion
Having considered the respective applications and submissions in light of the available evidence and relevant statutory provisions, the Court is satisfied that [X]’s best interests would not be served by allowing her to accompany the mother on the proposed overseas trip to India. Consequently, that aspect of her interim application is dismissed. The current orders prevent overseas travel without the consent of both parties. They also prevent the mother relocating with [X] from the Sydney metropolitan area. The Court is satisfied that until the evidence can be tested those orders should remain in full force and effect.
The Court notes that the matter is listed for mention hearing on
3 March 2011 and that an ICL is to be appointed.
The father’s costs of the interim hearing and this judgment hearing will be reserved.
There will be Orders of the Court reflecting this decision. The Court reserves the right to settle the reasons for this decision.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Monahan FM
Associate:
Date: 20 January 2011
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