CLIFFORD & THIESSEN

[2015] FamCA 759

FAMILY COURT OF AUSTRALIA

CLIFFORD & THIESSEN [2015] FamCA 759

FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Overseas travel – Where the applicant mother proposes to take the child to the United States for two periods of nine days to visit her fiancée – Where the respondent father no longer objects to the travel occurring – Orders made for the parties to sign all necessary documents for the child to obtain a passport – Orders made for the mother to pay a bond of $30,000 to be held by her solicitors – Orders made providing for communication between the father and the child whilst overseas.

Family Law Act 1975 (Cth)

APPLICANT: Ms Clifford

RESPONDENT: Mr Thiessen

FILE NUMBER: SYC 4108 of 2011

DATE DELIVERED: 15 September 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 24 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Boyle

SOLICITOR FOR THE APPLICANT: Reid Family Lawyers

THE RESPONDENT: Mr Thiessen appeared for and on his own behalf

Orders pending further order:

Overseas Travel

1. The applicant mother be permitted to remove the child B, born on … 2008 (“the child”), from the Commonwealth of Australia for the period 18 September 2015 to 27 September 2015 (inclusive) and 28 March 2016 to 6 April 2016 (inclusive) and on such other occasions as agreed between the parties in writing.

2. The parties are hereby restrained from travelling to a country other than a country which is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”).

Passport

1. Within forty-eight (48) hours of the date of these Orders, both parties will do all acts and things and sign all documents as are necessary to obtain an Australian passport for the child and the parties do all things and sign all necessary documents to ensure that the child has a valid passport at all times.

2. The passport of the child will be retained by the applicant mother’s solicitors and both parties will do all such things, acts and sign all documents as may be necessary to authorise such passport to be held on behalf of the parties by the applicant mother’s solicitors.

3. The parties will do all such things, acts and sign all documents as may be necessary to authorise the applicant mother’s solicitors to release the passport to the parent travelling overseas with the child, in accordance with any written agreement between the party and/or these Orders, not less than fourteen (14) days prior to the date of departure or for a period of forty-eight (48) hours to enable the parties to book airline tickets.

4. Each party will do all things to return the child’s passport to the applicant mother’s solicitors within twenty-four (24) hours of booking flights and seventy-two (72) hours of returning to Australia.

5. The applicant mother will not leave the child in the care of any person who is unknown to the child and the applicant mother.

Bond

1. The applicant mother will pay to the trust account of her solicitors at least seven (7) days prior to each date of the child’s departure overseas pursuant to these Orders, a bond in the sum of $30,000 in respect of which the following will apply:

   (a)The bond will be held in the trust account of the applicant mother’s solicitors.

   (b)The bond will be returned to the applicant mother forthwith upon the child’s return to Australia after each period of time spent overseas pursuant to these Orders, except as provided in Order 4(c) below.

   (c)The respondent father may direct the release of the bond to him if seven (7) days have elapsed since the date on which the child was booked to return to Australia, and the child has not returned to Australia unless the delay is due to unforeseen circumstances including but not limited to delayed flights, natural disaster and/or severe illness.

   (d)In the event that the bond or any part thereof is released to the respondent father pursuant to these Orders, it is to be used by the respondent father solely for the purpose of the costs of travel in order to procure the return of the child to Australia and/or legal costs incurred by the father in procuring the child’s return to Australia.

Communication/Time

1. The child will spend makeup time with the respondent father on Father’s Day weekend being Friday 4 September 2015 to Sunday 6 September 2015 and on the weekend of 29 April 2016 to 1 May 2016 on the same terms as the Orders made 24 August 2014.

2. The applicant mother will facilitate electronic communication between the Respondent father and child whilst she is overseas pursuant to these Orders by Skype, telephone and email at all reasonable times and additionally every second day by Skype at 6:30 am Australian Eastern Standard Time.

Provision of travel information

1. For the purposes of the child’s trip to the United States which commences on 18 September 2015, the applicant mother will forthwith provide to the respondent father details of the itinerary and accommodation.

2. For the purposes of future overseas travel by the child, the travelling parent will provide to the non-travelling parent details of the itinerary and accommodation no later than 21 days prior to the departure date.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Clifford & Thiessen 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 SYDNEY

FILE NUMBER: SYC 4108 of 2011

Ms Clifford

Applicant

And

Mr Thiessen

Respondent

REASONS FOR JUDGMENT

The proceedings

1. Ms Clifford (“the mother”) and Mr Thiessen (“the father”) are the parents of B, who was born in 2008 and is aged seven years.  On 24 August 2015 the mother’s application for interim orders, which would permit her to travel with the child to the United States, came before me in a Duty List.

2. On 24 August 2015 the father had filed no material in response to the mother’s application for interim orders.  I granted leave to him to file in Court a Response to Initiating Application and affidavits sworn by himself and his wife Ms Thiessen.

3. Due to shortness of hearing time on 24 August 2015, I directed that each of the parties file and serve a Minute of the interim orders which they sought and written submissions in support of such proposals.  I received these documents on 25 August 2015 and 26 August 2015.

4. The applicant mother sought the following orders:

   Overseas Travel

   1.That the Applicant mother be permitted to remove the child B, born … 2008 (“the child”), from the Commonwealth of Australia for the period 18 September 2015 to 27 September 2015 (inclusive) and 28 March 2016 to 6 April 2016 (inclusive) and on such other occasions as agreed between the parties in writing.

   2.The parties are hereby restrained from travelling to a country other than a country which is a signatory to the Hague Convention On the Overseas Abduction of Children (“the Hague Convention”), other than for the purposes of transit.

Passport

3.Within 48 hours of the date of these Orders, that both parties do all acts and things and sign all documents as are necessary to obtain an Australian Passport for the child and the parties do all things and sign all necessary documents to ensure that the child has a valid Passport at all times.

4.That the Passport of the child be retained by the Applicant mother’s solicitors and that both parties do all such things, acts and sign all documents as may be necessary to authorise such Passport to be held on behalf of the parties by the Applicant mother’s solicitors.

5.That the parties shall do all such things, acts and sign all documents as may be necessary to authorise the Applicant mother’s solicitors to release the Passport to the parent travelling overseas with the child, in accordance with any written agreement between the party and/or these Orders, not less than 14 days prior to the date of departure or for a period of 48 hours to enable the parties to book airline tickets.

6.Each party is to do all things to return the child’s passport to the Applicant mother’s solicitors within 24 hours of booking flights and 72 hours of returning to Australia.

7.Pursuant to Section 106A of the Family Law Act 1975 in the event that either party neglects or refuses to sign a Passport Application or any other document necessary to obtain or renew an Australian Passport for the child within seven (7) days of receiving a written request to do so from the other party, then the Registrar or Deputy Registrar of the Family Court of Australia at Sydney be authorised to sign such documents or documents on behalf of the defaulting party and a defaulting party shall pay the other party’s taxes costs of and incidental to any request and production of documents to the Registrar.

7.That the child shall not be left by the Applicant mother in the care of any person not known to the child and the Applicant mother.

Bond

8.That the Applicant mother shall pay to the trust account of her solicitors at least seven (7) days prior to each date of the child’s departure overseas pursuant to these Orders, a bond in the sum of $230,000 in respect of which the following shall apply:

a.      The bond shall be held in the trust account of the Applicant mother’s solicitors;

b.      The bond shall be returned to the mother forthwith upon the child’s return to Australia after each period of time spent overseas pursuant to these Orders, except as provided in Order 4(c) below;

c.      The father may direct the release of the bond to him if seven (7) days have elapsed since the date on which the child was booked to return to Australia, and the child has not returned to Australia unless the delay is due to unforeseen circumstances including but not limited to delayed flights, natural disaster and/or severe illness;

d.      In the event that the bond or any part thereof is released to the Respondent father pursuant to these Orders, it is to be used by the Respondent father solely for the purpose of the costs of travel in order to procure the return of the child to Australia and/or legal costs incurred by the father in procuring the child’s return to Australia;

e.      The Applicant mother shall not be required to lodge any bond pursuant to this Order after the 6 April 2015.

Communication/Time

9.That the child spend make up time with the Respondent father on Father’s Day weekend being Friday, 4 September 2015 to Sunday, 6 September 2015 on the same terms as the Orders made 24 August 2014.

10.That the Applicant mother shall facilitate electronic communication between the Respondent father and child whilst she is overseas pursuant to these Orders by Skype, telephone and email at all reasonable times and additionally every second day by Skype at 6:30 am Australian Eastern Standard Time.

Costs

9.That the father pay the mother’s costs of and incidental to this Application.”

1. The respondent father sought the following orders:

   1.That the Formal Orders regarding the care of the child ‘[B]’, born …, 2008, which were made on 29 August, 2014 remain in place.

   2.That the Applicant Mother ‘[Ms Clifford]’ be permitted to remove the child from the Commonwealth of Australia on 18 September 2015 in order to travel to and visit [State D], returning the child to Sydney Australia no later than 27 September, 2015.

   3.That the child be ready and the available for pick up by the Father on 27  September 2015 at the Mother’s home in [Suburb E], at 6:00pm, as per current Formal Orders.

   4.That the Mother be permitted to remove the child from the Commonwealth of Australia on 28^th March 2016, in order to travel to and visit [State C] on returning with the child no later than 6 April, 2016.

   5.That prior to the child leaving Australia at any time, the Applicant Mother [Ms Clifford] is to provide a monetary bond of $30,000 as financial security that will be returned to her upon the child’s return to Australia.

   6.That if the child is not returned to Sydney, Australia within 72 hours of the stated and agreed upon time of arrival, the Father is able to draw upon the full monetary bond which he may use at his discretion to pursue travel and legal action in order to return the child to Australia.

   7.As the trip set out in Interim Order 4 takes place during the Father’s time with the child, the child will spend the weekend of April 29^th – May 1^st in the Father’s care as ‘make up time’ with change over taking place at the locations set out in the current Formal Orders.

   8.That whilst in America, the child be cared for by the Mother, or by a person who is known to both the mother and the child.

   9.That the child be in the care of the Mother during all flights and transfers.

   10.That the Mother provide the Father, in writing, with a detailed itinerary for the child including addresses and contact numbers for where the child will be staying during both trips. That this itinerary be provided no later than 72 hours before the child is scheduled to depart Australia.

   11.That the Mother provide the Father with a copy of the child’s return flight tickets at least 72 hours before the child leaves Australia.

   12.That the child not be permitted to travel to any non-Hague countries.

   13.That the child’s passport be retained by the Father. That the passport be released to the Mother 48 hours prior to her scheduled departure from Australia, and returned to the Father within 48 hours of the child returning to Australia.

   14.That whilst the child is travelling the Mother will facilitate and initiate Skype contact between the child and the Father daily at 6:30am Monday - Friday Australian Eastern Standard Time (AEST). And at 9:30am on Saturday and Sunday Australian Eastern Standard Time (AEST).

Background

1. The mother and the father, who are both aged 33, were both born in 1982.  They commenced a relationship in December 2005 and married in 2007.  The parties separated in April 2010 and were divorced on 19 September 2011.

2. The mother has a son of a prior relationship, F, who was born in 2005 and is presently ten years of age.  F’s father has never had any involvement in his life.

3. Between May 2010 and September 2011 both the child and F spent time with the father on each alternate Saturday.  Between September 2011 and January 2013 they spent time with the father for one overnight period and a Saturday in each month.

4. On 20 February 2014 interim orders were made which provided that the child live with the mother and spend each alternate weekend with the father.  On 29 August 2014 final orders were made by the Federal Circuit Court which provided that the parties have equal shared parental responsibility;  that the child live with the mother and that she spend time with the father each alternate weekend from 6.00 pm on Friday until 6.00 pm on Sunday and for half of all school holidays.

5. In approximately August 2014 the mother met her current partner, Mr G, at an on-line dating site.  Mr G is an American health professional who lives in State D.  He is the father of an eight year old son, H, whose care he shares with his ex-wife.

6. Mr G travelled to Australia in September 2014 and met the child and F for the first time.  The mother asked for the father’s consent to take the child on a trip to the United States in October 2014 but he refused this request.  Mr G came to Australia with his son H in November 2014 and again spent time with the mother, F and the child.

7. In December 2014/January 2015 the mother and F spent three weeks in the United States with Mr G and his family.  The child was in the care of the father during this period.

8. In April 2015 the mother and Mr G became engaged and intend to marry in State C in 2016.  In her Initiating Application filed on 30 July 2015 the mother sought orders which would enable her to relocate with the child permanently to the United States.

Consideration

1. The father no longer opposes completely the mother’s proposal to make two trips to the United States with the child.  The following issues remain for determination:

   1.Should the child begin to spend time with the father at 6.00 pm on 27 September 2015?

   2.In which circumstances and under what conditions should a $30,000 bond be released to the father?

   3.Should the child spend “makeup” with the father on the weekend of 29 April 2016 to 1 May 2016?

   4.What information should the mother be required to provide to the father concerning the child’s travel arrangements?

   5.Who should hold the child’s passport?

   6.Should Skype contact occur between the father and the child every day while she is in the United States?

1. Time with the father on 27 September 2015

1. It could well be the case that the mother and the child return to Australia at some time on the day of 27 September 2015.  That day is the approximate midpoint of the September/October 2015 school holidays and the time when the child would normally move into the care of the father for half of that period.

2. Although the child may well be suffering from the effects of a long international flight which ends that day, the father insists that he collect her at 6.00 pm on 27 September 2015.  I can see no reason why the child should not move into the care of the father on Sunday 28 September 2015, if the focus of the exercise is her best interests.  In my view, the child will benefit from an opportunity to recover from the long-haul flight and her relationship with the father will in no way be compromised by an additional night in the care of the mother for that purpose.

1. Release of $30,000 bond to the father

1. The mother proposed that the bond money be released to the father if the child has not returned to Australia after seven days have elapsed since the booked date, unless the delay is due to unforeseen circumstances.  The mother included as “unforeseen circumstances” delayed flights, natural disaster and “severe illness”.  The father proposed that the funds be released to him within 72 hours of the “stated and agreed upon time of arrival”.

2. It seems to me that the 72-hour period may result in a premature and unnecessary release of the bond money to the father.  It could well be that the return of the child is delayed due to good reasons which are completely beyond the control of the mother.  It is conceivable that, in such circumstances, the father could seek the release of the funds while the mother and the child are in the process of returning to Australia.  I will make the order proposed by the mother in relation release of the bond money to the father.

1. “Makeup” time on the weekend of 29 April 2016 to 1 May 2016

1. The father maintained that the proposed overseas trip between 28 March 2016 and 6 April 2016 will occur “during the father’s time with the child”.  I assume that, in the ordinary course, the child would spend a weekend with the father during the period of the proposed travel.  I can see no reason why the child should not spend the weekend of 29 April 2016 to 1 May 2016 with the father and I will make an order accordingly.

1. Information to be provided by the mother to the father in relation to the child’s travel

1. The Minute of Orders proposed by the mother contained no provision that the mother furnish travel and accommodation information to the father.  It is usual for a travelling parent to provide information in relation to travel and accommodation arrangements to the other party in circumstances such as the present.  I consider that the mother should provide this information to the father concerning the child’s international travel.

1. Who should hold the child’s passport?

1. The mother proposed that her solicitor hold the child’s passport, while the father maintained that this responsibility should be entrusted to him.  The parents obviously dislike and distrust each other to a significant extent.

1. I will order that the mother’s solicitor holds the child’s passport pending further order of the Court.  I reject the father’s suggestion to the effect that the mother’s solicitor may abrogate her responsibilities as an officer of the Court and provide improper assistance to her client in relation to the child’s passport.

1. Frequency of Skype contact during overseas trips

1. The father’s proposal would see Skype contact between himself and the child on every day of her absence from Australia and at two different times.  In my view, Skype contact every day may well place unreasonable limits on the mother’s freedom to pursue activities with her fiancée, his son and his family.  I cannot see any need for Skype contact on a daily basis for two periods of nine days, in order to sustain the child’s relationship with the father.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 15 September 2015.

Associate: 

Date:  15 September 2015