COLES & TENNANT

[2015] FCCA 2926

FEDERAL CIRCUIT COURT OF AUSTRALIA

COLES & TENNANT [2015] FCCA 2926

Catchwords:
FAMILY LAW – Children – Overseas travel – international travel – where father seeks to prevent mother from taking children out of Australia to the (country omitted) and (country omitted) – whether security required for return of children – “pre-emptive strike” – where no order sought to remove children from Australia.   

Legislation:

Australian Passports Act 2005 (Cth) s.11

Family Law Act 1975 (Cth), ss.60CA, 65Y, 106A

Cases cited:
Cadena & Beltran [2010] FMCAfam 1165
Gallo & Gallo [2012] FMCAfam 601
Kuebler & Kuebler (1978) 4 Fam LN 4; FLC 90-434
In the Marriage of Line (1996) 21 Fam LR 259; (1997) FLC 92-279
Raycliff & Nilssen (No.2) [2013] FCCA 1810
V & V [2004] FamCA 1074; (2004) FLC 93-201

Applicant: MR COLES

Respondent: MS TENNANT

File Number: SYC 7171 of 2014

Judgment of: Judge Scarlett

Hearing date: 19 October 2015

Date of Last Submission: 19 October 2015

Delivered at: Sydney

Delivered on: 30 October 2015

REPRESENTATION

Counsel for the Applicant: Ms Spain

Solicitors for the Applicant: Pearson Emerson Meyer Family Lawyers

Counsel for the Respondent: Mr Macpherson

Solicitors for the Respondent: Shire Legal

ORDERS

1. The Interim Orders made by consent on 9 February 2015 are discharged.

2. Both MR COLES and MS TENNANT and their servants or agents are restrained from removing or attempting to remove or causing or permitting the removal of X a male born (omitted) 2011 and Y a female born (omitted) 2013 from the Commonwealth of Australia.

3. IT IS REQUESTED that the Australian Federal Police give effect to the immediately preceding Order by placing the names of the said children X and Y on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Family Law Watch List for a period of three (3) years.

4. Upon the expiration of the period of three (3) years referred to in the immediately preceding Order and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the names of the children X and Y from the Family Law Watch List.

5. In the event that either parent intends to travel outside of the Commonwealth of Australia with one or both of the children, then such parent (hereinafter referred to as “the Travelling Parent”) must provide to the other parent (hereinafter referred to as “the Remaining Parent”) not less than six (6) weeks from the intended date of departure:

   a)A written notice to the Remaining Parent which shall state that they intend to travel outside of the Commonwealth of Australia and shall indicate whether they intend to travel with one or both of the children as provided by these Orders; and

   b)A full itinerary of their travel plans, including but not limited to the intended overseas residential address or addresses of the Travelling Parent and one or both children and the overseas contact telephone and facsimile numbers if applicable at that intended address or addresses.

6. The Remaining Parent must inform the Travelling Parent in writing within fourteen (14) days of receipt of the written notice and itinerary referred to in the immediately preceding Order whether or not he or she consents to the Travelling Parent’s proposal to travel out of the Commonwealth of Australia with one or both of the said children. 

7. The Travelling Parent shall deliver to the Remaining Parent not less than twenty-one (21) days prior to the intended date of departure a copy of the airline/sea craft tickets (or written confirmation from the airline or travel agent) for both the Travelling Parent and the child or children for their departure from and return to the Commonwealth of Australia.

8. Each parent must do all things and sign all documents necessary to renew either or both of the children’s passports or apply for new passports, as the case may be, no more than fourteen (14) days after the other party requests them to do such things or sign such necessary documents.

9. The parties are restrained by injunction from applying for any passports for the children or either of them other than (country omitted) or Australian passports.

10. In the event that either parent intends to apply for the renewal of or a new passport or passports for the children or either of them from the Australian Passport Office or the relevant Department of the Government of the (country omitted) then such parent must advise the other parent in writing of that intention not less than fourteen (14) days prior to making that application.

11. The passports for the children are to be held by the Sydney Registry of the Federal Circuit Court of Australia.

12. When either or both of the children travel outside of the Commonwealth of Australia each parent must ensure that the children only travel on their Australian passports.

IT IS NOTED that publication of this judgment under the pseudonym Coles & Tennant is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7171 of 2014

MR COLES

Applicant

And

MS TENNANT

Respondent

REASONS FOR JUDGMENT

1. This is an application about a very limited issue. It concerns the question of overseas travel by the mother with the parties’ two children.  The unusual factor in this case is that there is no actual application by the mother to take the children out of Australia, either to the (country omitted) where she lived for a number of years, or to (country omitted) where she was born and lived when she was a little girl.

2. In some ways, this case is almost a non-issue.  The difficulty is that the father, who is the Applicant, does not wish the mother to take the children either to the (country omitted) or to (country omitted).  The mother is not applying to do so at this stage, but wishes to visit members of her extended family in both of those countries at some unspecified point in the future.

Background

1. The parties have two children.  X was born on (omitted) 2011.  He is aged four.  Y was born on (omitted) 2013.  She is two years old and will not turn three until (omitted) next year.  The parties commenced living together in 2010 and were married on (omitted) 2011.  They have since separated.

2. These proceedings commenced when the father filed an application for parenting orders on 14 November 2014.  In that application he sought a number of orders relating to the children.  The mother filed a response on 5 February 2015.  In that response, she sought both interim and final orders.  The interim orders that she sought in summary provided that:

   a)mother and father should have equal shared parental responsibility for the children;

   b)each parent would be responsible for day-to-day decisions concerning the care of the children when the children were living with them or spending time with them;

   c)the children live with her;

   d)there would be time spent by the children with the father in a regime that extended until Y, the younger child, reached the age of five years;

   e)there would be a modification of that time once Y had attained the age of five;

   f)the children would spend time with the mother on Mother’s Day, the children’s birthdays and the mother’s birthday;

   g)if one parent was unable to care for the children at the time prescribed by the orders, the other parent would be given the first option to care for the children;

   h)changeover was to take place at (omitted) wharf;

   i)the children were to attend the (omitted) School at (omitted);

   j)the parties would encourage and facilitate telephone communication between the children;

   k)each parent would be restrained from changing the children’s usual place of residence to any place outside the Sydney metropolitan area;

   l)the parties are to keep each other informed of their residential addresses and telephone numbers;

   m)in the event of illness or injury affecting the children, each parent would contact the other parent forthwith to inform them;

   n)the parties were restrained by injunction from abusing, insulting or denigrating the other and discussing the proceedings or the contents of any documents with each other;

   o)the parents be permitted to liaise directly with the children’s school and sporting bodies to receive school notices and other information;

   p)parties were to be at liberty to attend at the children’s school for the purpose of any functions;

   q)the parties were to establish a communication book;

   r)the parties were to attend mediation.

3. Importantly, there were two orders sought on an interim basis by the mother relating to overseas travel.  These will be set out in full and they are proposed orders 19 and 20 of the mother’s Response:

   19.  Until further order, each party Mr Coles, DOB (omitted), and Ms Tennant, DOB (omitted) 1977 their servants and/or agents be and are hereby restrained from removing or attempting to remove, or causing or permitting the removal of the said children, X, DOB (omitted) 2011, and Y, DOB (omitted) 2013, from the Commonwealth of Australia, and it is requested that the Australian Federal Police give effect to this order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia.

   20.  That within 48 hours of these orders, the parties deliver any passport in their respective possession or control relating to the children to the Registrar of the Sydney Registry of the Family Court of Australia to be held by the said registrar pending further order of the Court.

4. There were final orders sought in the Response in not dissimilar terms.

5. Events moved quickly after the filing of the mother’s Response on 5 February 2015.  As soon as 9 February, only four days later, the parties entered into final parenting orders by consent, covering everything except the vexed question of overseas travel.  The consent orders into which they entered on a final basis provided for equal shared parental responsibility;  responsibility for day-to-day decisions;  time spent with each parent;  school matters;  special occasions;  ancillary orders including the attendance of an anger management course.

6. The only things that were not resolved by these final consent orders were matters relating to overseas travel.  However, the same day that the parties entered into final consent orders in respect of all other parenting issues, they entered into interim consent orders covering these issues.  Those orders said:

   Pending the making of further orders, the parties enter into the following interim order by consent:

   (1)  that pending further order, the parties, their servants and/or agents be and are hereby restrained from removing or attempting to remove, or causing or permitting the removal of X, born (omitted) 2011, and Y, born (omitted) 2013, from the Commonwealth of Australia, and it is requested that the Australian Federal Police give effect to this order by placing the names of the children, X, born (omitted) 2011, and Y, born (omitted) 2013, on the airport watch list, in force at all points of arrival and departure in the Commonwealth of Australia.

   (2)  that the parties agree to attend mediation with Ms M, or another mediator mutually agreed, with a view to discussing final parenting orders in relation to the children remaining on the airport watch list, and the conditions of their international travel.

   (3)  that the parties, their servants and agents are restrained from taking or sending, or attempting to take or send the children from the Commonwealth of Australia.

7. The Court was asked to list the proceedings for final hearing purely on the question of international travel.  The parties’ lawyers estimated that the matter would take one day, and that estimate proved to be correct. 

Evidence

1. Each party filed a case outline document.  It appeared that the applicant father was seeking orders set out in an Amended Initiating Application, which was filed on 12 October, only one week before the hearing on the 19th.  12 October was the deadline set by the Court for filing and serving documents for the hearing.  The Amended Application was accompanied by an affidavit by the father, and affidavits filed that same day by the father’s mother and sister.  It would appear clear that if the father had taken the step of filing an amended application on the last day for the filing of affidavits, there must be implied consent to the filing of an Amended Response. 

2. The mother, in fact, filed on 14 October an affidavit sworn the day before on 13 October.  A Response to the Amended Application was not filed.  This was a cause of some concern because it would appear that the orders sought in the mother’s original response filed on 5 February had all been spent.  Both the interim and final orders that she sought were the subject of the interim and final consent orders into which the parties entered only four days later, on 9 February. 

3. Mr Macpherson of Counsel told the Court that he had identified that particular problem, and sought to remedy it by handing up in court a minute of proposed orders.  Counsel for the applicant, Ms Spain, did not oppose that course.  Counsel for each party helpfully provided to the Court a case outline document, both of which were provided the morning of the hearing.

4. The orders sought by the father were those set out in his amended initiating application.  The orders sought by the mother were those set out in her minute of order.  On comparing the two sets of orders, it is clear that neither party is seeking at this stage to remove either of the children from Australia.  Both the father and the mother are seeking orders that the children should not be taken from Australia, and that their names should remain on the Family Law watch list, but with some provision to be made in case either party wished to take the children out of the country at some time in the future.

5. It would appear that to some extent, there is no major issue between the parties at all.  Neither party is asking the Court to be allowed to take the children out of Australia.  The application by the father was described by the mother’s counsel, Mr Macpherson, as a “pre-emptive strike”.  It is an attempt by the father to lock in the mother to arrangements which would either prevent both parties from taking either child out of Australia until the children attain the age of 18, or in the alternative, to propose a strict regime to allow such an arrangement to take place. 

6. The final orders sought by the father as his main orders would have the effect of:

   a)restraining both parties from taking or sending, or attempting to take or send the children from the Commonwealth of Australia at any time;

   b)to have the Australian Federal Police place the names of the children on the Family Law watch list for the purpose of preventing their removal from Australia, presumably until the children attain the age of 18 years;

   c)that the father’s solicitor notify the marshal in the Australian Federal Police of the orders;

   d)that the Registry Manager should notify the Department of Immigration and Ethnic Affairs of these orders, and request the assistance of the department to assist in ensuring that the parties do not breach these instructions.

7. I did comment to the parties during the hearing or at the outset that the current name of the department is the Department of Immigration and Border Protection.  The department has been known to change its name frequently, and has certainly not used the title Department of Immigration and Ethnic Affairs for a couple of decades.  It has been through four name changes from the Department of Immigration and Multicultural Affairs, the Department of Immigration and Multicultural and Indigenous Affairs, the Department of Immigration and Citizenship, until it has now reached its current title of the Department of Immigration and Border Protection.

8. Nevertheless, in the father’s application he seeks alternative orders to those rather draconian final orders that would prevent either party taking the children anywhere out of Australia until they become adults.  Those orders commence with injunctions against removing the children, and placing the names of the children on the Family Law watch list, but then provide for a regime where either parent who wishes to travel outside of Australia with one or both of the children, should give 21 days’ notice to the other parent in writing;  and should deposit a sum of money to be held in a controlled moneys account as surety for the return of the children;  would provide for an application for consent orders;  and would apply for orders to be made about the obtaining of passports;  and would require passports to be returned when no longer required for travel, to be held by the Family Court of Australia.

9. I indicated to counsel that I had some difficulties with some of the orders proposed.  Both the Applicant and the Respondent seek an order in these terms:

   The parties agree that the children will only hold (country omitted) and Australian passports.

   I am of the view that the Court does not have the power to order parties to agree.  If the Court did possess that power to order the parties to litigation to agree to things, the Court would be spending a large part of its time processing consent orders rather than hearing any evidence.  I am not of the view the Court has the power to order that the parties should agree on anything.

10. I also have difficulties with the father’s proposed orders 15, 16, 17 and 21, all of which require passports to be delivered to or held by the Family Court of Australia.  This Court is the Federal Circuit Court of Australia.  There appears to me to be no need for this Court to enlist the services of the Family Court to undertake such tasks.  If passports are to be held by the Court or given to the Court or returned to the Court, then they should be given to this Court, namely, the Federal Circuit Court of Australia.

11. I also note the father is seeking in order 21 this order:

    In the event either party fails to sign any necessary documents to give effect to any order, a registrar or deputy registrar of the Family Court of Australia is authorised to execute any necessary document on behalf of and in the name of either of the parents, and do all acts and things necessary to give validity and operation to any such document.

12. The purpose of this order is unclear, and with respect, the jurisdiction is unclear. If the order is intended to refer to the power given to the Court under section 106A of the Family Law Act, then it would seem to be inappropriate in dealing with orders relating to international travel. Section 106A does not empower a Court to authorise someone to obtain a passport for a child. The Court does have the power under section 11 of the Australian Passports Act 2005 to make orders relating to the issue of Australian passports, but it does not do so under section 106A of the Family Law Act.

13. The mother in her minute of order seeks orders that would provide: 

    (1), that the names of the children be placed on the Family Law Watch List; 

    (2), that in the event that either parent intends to travel outside of the Commonwealth of Australia with one or both of the children, then that parent must give written notice to the other party within 21 days, including providing a full itinerary; 

    (3), that the party intending to travel not less than 18 days prior to the intended date of departure should provide to the party remaining in Australia copies of airline or sea craft tickets or written confirmation from the travel agent; 

    (4), the travelling parent shall not less than 14 days prior to the intended date of departure lodge security with the registry of the – of either the Federal Circuit Court of Australia or the Family Court of Australia in the sum of $25,000 if one child is to go or $50,000 if both children are to go; 

    (5), that the surety is to be returned to the travelling parent upon return to the Commonwealth of Australia;

    (6), if one or both of the children are not returned, then the security or surety is to be released to the remaining parent;

    (7), upon compliance with these orders, the travelling parent shall provide to the remaining parent an application for consent orders in terms of settlement; 

    (8), parties shall be responsible for their own legal costs; 

    (9), each party shall do all things and sign all documents necessary to renew either or both of the children’s passports or apply for new passports; 

    (10), the parties agree that the children will hold only (country omitted)  and Australian passports; 

    (11), if either party intends to apply for the renewal of or a new passport or passports from the relevant department of the (country omitted) or Australian Governments, that parent must advise the other parent in writing of that intention no less than 14 days before the application is made; 

    (12), the passports for the children to be held by the registry of the Federal Circuit Court of Australia or the Family Court of Australia; 

    (13), within seven days of the return to the Commonwealth of Australia, the travelling parent should provide the passport or passports to the registry of either the Federal Circuit Court or the Family Court; 

    (14), the parties agree that the children shall only travel on their Australian passports; 

    (15), the travelling parent should cause the child or children to communicate with the remaining parent while overseas at least three times a week using Skype or FaceTime, or by telephone if Skype or FaceTime are unavailable; 

    (16), the security will be adjusted on 1 July each year in accordance with the percentage movement of the consumer price index;  and

    (17), if either party fails to sign any necessary document, then the registrar or deputy registrar of the Federal Circuit Court or the Family Court of Australia is authorised to execute any necessary documents on behalf of and in the name of either party.

1. I have previously commented on my concerns about orders requiring the parties to agree either that the children will only hold (country omitted) or Australian passports, or in the mother’s case, that the children shall only travel on their Australian passports.  In passing, I might comment as to the utility of the children being permitted to hold (country omitted) passports if those passports are going to be held by the Registry of the Court and the children will only be able to travel on their Australia passports.  In the circumstances, with respect, there seems to be little point in the children having (country omitted) passports if they are to remain in the Court until the children respectively attain the age of 18.

2. Interestingly too, the mother’s orders, whilst referring to the Registry of the Federal Circuit Court of Australia also provide for the passports to be held by the Registry of the Family Court of Australia.  It is unclear as to whether the orders intend that the party being the travelling parent should have an option as to the Registry of which Court should hold the children’s passports.  Suffice it to say that the orders sought by both parents contain, in my respectful opinion, some problematic elements.

3. To place these matters in context, the father was born in Australia and is an Australian citizen by birth.  The mother is not an Australian citizen.  She was born in (country omitted).  She holds a passport from the (country omitted).  Despite having been born in (country omitted), the mother is not a citizen of that country and does not hold a passport from that country.  She is not able to reside permanently in (country omitted).  She certainly has the right to a (country omitted) passport because she is a citizen of that country and has the right to live in the (country omitted).  She is also a permanent resident of Australia.  The connection with the (country omitted) is that (country omitted) was initially a (country omitted) colony until it obtained its independence.  The mother does, however, have a connection with (country omitted), the country of her birth, in that her father and other extended family members still reside there.  The mother’s brother and other friends and family reside in the (country omitted).

4. The father relies on three affidavits:  (a), his affidavit sworn 9 October 2015;  (b), the affidavit of his sister, Ms A sworn on 9 October;  and (c), the affidavit of his mother, Ms L sworn on 11 October.

5. The mother relies on two affidavits:  (1), her affidavit sworn on 13 October; and (2), her affidavit sworn on 17 October and filed on 19 October, the day of the hearing.  No objection was taken to either of those affidavits being read.

6. Essentially it is the father’s evidence that the marriage between the mother and himself was unfortunately marked by controversy and disagreements almost throughout the relatively short time in which the parties were together.  They commenced living together in 2010.  They were married on (omitted) 2011.  The father deposed that he regarded the relationship to have irretrievably broken down in about early November 2014 when they separated following the mother having obtained an apprehended domestic violence order against him three days earlier on 11 November 2014.  The father’s concerns are set out in paragraphs 14 and onwards of his affidavit.  The father deposed:

   Ms Tennant was born in (country omitted) which is a small country in (country omitted).  As far as I am aware, Ms Tennant is not a citizen of (country omitted), although she lived there until she was 13 years old.  Ms Tennant is a (country omitted) citizen.  Ms Tennant does not hold Australian citizenship and does not have an Australian passport.  She has no family in Australia other than the children.  Ms Tennant’s biological parents, half-sister, stepfather and extended family live in (country omitted).  Her brother and his family, her godmother and friends live in the (country omitted).

7. The father went on to depose, at paragraph 17, in what appears to be more of a submission than a statement of fact that was not objected to:

   Ms Tennant has no continuing ties to Australia that would make me feel comfortable that she considers it to be her home, that Australia is where she considers her life to be and that she will return here with the children if she leaves.  By way of example, she owns no real estate in Australia, does not have any business interests or employment (despite me caring for the children from 9 am every Friday until noon each Monday and them having been in day care each Tuesday and Wednesday).  She has no family members in Australia and has only a few relatively new friendships, given that she has only lived in Sydney for the past five years.

8. The father goes on to cite statements by the mother such as her firm view that she would not apply for Australian citizenship as that would be of no use to her, and her being very critical of the infrastructure and government organisations in Australia, and complaining that Australia is a racist country.  He goes on to quote statements or threats made by the mother during the term of the relationship, such as:

   I am going home to be with my mum and sister.

   The only reason I am here is because of you, and if we are not together then I am taking the kids and going.

   And in about June 2012 following an argument:

   I am phoning your mum and I am going back to the (country omitted).

9. The father deposes that in about November of 2013 the mother said that she wanted a divorce, and said to him:

   I am going back to (country omitted) with the kids.  I can very easily set up a (business omitted) in one of my father’s properties.

   And:

   If I use Australian money I can live a very comfortable life in (country omitted).

10. The father’s sister, Ms A, deposed in her affidavit that she shared a close relationship with the mother and her brother’s children, X and Y, and her four children are very close to them too.  She described a telephone conversation that she had with the mother on 23 August 2013 where she rang the mother and asked, “What is going on,” and the mother replied:

    Why are you intimidating me?

    And when Ms A said that she was not intimidating her, the mother, she said, said to her:

    I did not sign up for this.  I want a divorce, to leave Australia and take the children to (country omitted).  My father has property there and I could live rent-free.  The weather in (country omitted) is warm all the time.

11. Ms A went on to say that on 2 October last year the mother said to her:

    My father has property in (country omitted).  I could live in (country omitted) cheaper than Australia.

12. The father’s mother, Ms L, gave evidence about the rocky relationship between her son and his wife, detailing incidents such as:   in about the middle of June 2012, where the mother telephoned her in an agitated state and said words to the effect:

    I am in the process of booking tickets to go back to the (country omitted).

13. The deponent travelled to the parties’ apartment in (omitted) and reported the mother saying to her:

    I am going back to the (country omitted).

14. The father, his sister and his mother were all cross-examined and maintained their evidence.

15. The mother deposed in the first of her affidavits sworn on 13 October 2015 that she is in negotiations with the father to reach an agreement on all property issues.  She goes on to say at paragraph 9:

    Neither Mr Coles nor I have commenced proceedings in relation to property, and I am hopeful we can reach an agreement soon.  I estimate the net asset pool as approximately $628,000.

16. The mother goes on to talk about her connection with her country of birth.  At paragraphs 10 to 12 she says:

    10. I was born in the (country omitted).  I wish to take X and Y on an overseas trip to my native (country omitted).  (country omitted) is a (omitted) situated on the (country omitted).  It is bordered by (country omitted) to the east, (country omitted) to the west and (country omitted) to the south.  It is the smallest country in (country omitted) with a population of about (omitted).

    11. (country omitted) came under (country omitted) rule in the late 17th century.  (country omitted) is a constituent country of the kingdom of the (country omitted) until (omitted), when it became an independent state.  (country omitted) maintains close economic and cultural ties to the (country omitted).

    12. (country omitted) is considered to be a culturally (omitted) country.  However, most of the population speak (language omitted).

17. The mother gave evidence about her extended family.  She deposed that she grew up in (country omitted) from birth to the age of 13, and from the age of eight she would travel once or twice a year for about two or three months to (country omitted) to stay with her father, who was then living in (country omitted).  At the age of 13, the mother decided that she would move from (country omitted) to (country omitted) to live with her father, and she lived there with him until she was aged 17.  Her mother still owns and lives in the same house in which she grew up in (country omitted).  The mother’s parents now both live in (country omitted), although they are separated.  Her sister Ms N also lives in (country omitted).  She last saw her mother in (omitted) 2013 but she has not seen her father, her sister or her brother for nearly four years.  The last time she saw them was in the (country omitted) when they arranged for X’s christening in (country omitted).  Her father attended the christening. 

18. The mother deposed that her brother Mr D lives in the (country omitted) and she is very close to him and she communicates with him almost daily.  She is close to her parents and both of her siblings.  The mother deposed that she also has a godmother who lives in the (country omitted), and she is very close to her.  She last saw her nearly four years ago and she communicates with her about three times a week using Skype, WhatsApp, email or text.  She has a first cousin named Ms I who lives in the (country omitted) with whom she grew up as sisters, and she has lots of really close friends in the (country omitted) with whom she is in regular contact.

19. The mother deposed that prior to her separation from the husband, she and he had planned an overseas holiday to (country omitted) and the (country omitted) with both children.  The idea was that there be one month in (country omitted) and then another month in the (country omitted).  The trip was cancelled, however, because of the parties’ separation.

20. The mother goes on to say:

    It is very important to me that my children have the opportunity to visit and see the house where I grew up, the schools I went to, the hospital I was born in and the church I was christened in.  My children should meet their grandparents, uncles and aunties, nieces and nephews.  It means a lot to me and it would be of enormous benefit to X and Y that they learn about their heritages, cultural background and extended family.  X and Y need to see, know and understand where they fit into their wider family.  This would be beneficial to them.

21. The mother goes on to say at paragraph 36:

    I want my children to develop and maintain a strong and healthy relationship with their entire family, which also includes my side of the family and of course Mr Coles’s.  To this end, should Mr Coles wish to take the children to see his extended family in (country omitted), I would encourage such a trip.  I speak five languages fluently, being (languages omitted).  My children are being raised bilingual.  I speak both English and (language omitted) in my home with the children.  Travelling to see my family in both countries will improve my children’s language skills.

22. The mother goes on in her affidavit to speak of her community ties in Australia with a number of friends, and the fact that she is currently engaged in (hobby omitted) classes.  She deposes that she is a (country omitted) citizen and had to hand back her (country omitted) passport and renounce her (country omitted) citizenship when she took (country omitted) citizenship.  Because she does not hold a (country omitted) passport, the mother says that she is not entitled to live permanently in (country omitted).  She is, however, a permanent resident of Australia but she does not hold Australian citizenship.  She denies having threatened to take the children out of Australia and not return and says that she has never attempted to do so.

23. In her affidavit of 17 October, filed on the morning at the Court, the mother sets out that her affidavit has been prepared in reply to the three affidavits of the father and his mother and sister.  She denies a number of the statements attributed to her by the father, his sister and his mother, or in the alternative, she says she does not recall them.  She does, however, say rather poignantly in paragraph 15:

    I do, however, remember that at around that period I was most unhappy.  I never felt more alone and abandoned in my whole life than when I was married to Mr Coles.  I admit that I had thoughts back then of going back to my family, but that was then, at my lowest.  I am now feeling a lot better and in control.  I no longer have those thoughts.

24. The mother goes on to deny the statement attributed to her by the father at paragraph 18 of his affidavit, where he deposes that she said of Australian citizenship:

    It is of no use to me.

25. What she says she said related to her passport.  She says the words she used were:

    (country omitted) passport is better as it comprises of many countries at the same time, many different cultures and languages and the opportunities to work and create a life outside (country omitted) alone.  Being part of the (country omitted) is more efficient and cool.

26. The mother was cross-examined by Ms Spain of Counsel for the father.  She remained unshaken in her evidence.

Submissions

1. Counsel for the Applicant and the Respondent each made submissions in which they referred the Court to the relevant authorities.  Counsel for the mother referred the Court to the well-known authorities of In the Marriage of Kuebler & Kuebler[1], and the later decision of the Full Court of the Family Court in Line & Line[2].  Both of those authorities relate to the question of applications to take a child out of a jurisdiction and include the setting of any security.  As Ms Spain pointed out in her submission, the Full Court of the Family Court said in Kuebler:

   The considerations that should be given to an application which involves a custodial parent taking a child out of the jurisdiction, without being exhaustive, include:  (a), the length of the proposed stay in the jurisdiction;  (b), the bona fides of the application;  (c), the effect on the child of any deprivation of access;  (d), any threats to the welfare of the child by the circumstances of the proposed environment;  (e), the degree of satisfaction which the Court bases its assessment of the party that a promise to the return to the jurisdiction would be honoured.[3]

   [1] (1978) 4 Fam LN 4; FLC 90-434

   [2] (1996) 21 Fam LR 259; (1997) FLC 92-279

   [3] (1978) 4 Fam LN 4 at 2004; FLC 90-434 at 77,205-77206

2. Ms Spain also drew the Court’s attention to the decision in the Full Court of the Family Court in Line & Line in relation to the risk that the departing parent would not return with the children, where their Honours said:

   In assessing that degree of risk, obviously considerations are the existence or otherwise of continuing ties between the departing parent and Australia (such as ownership of real estate, the existence of business interests or the residence of close family or friends here), the existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child-related issues), and the existence and strength of possible motives to remain in the nominated country (such as the ownership of real estate, the existence of business interests or the residence of close family and/or personal friends there).[4]

   [4] (1996) 21 Fam LR 264 [4.49]; (1997) FLC 92-279 at 83,846 [4.49]

3. Ms Spain also referred the Court to two decisions of this Court:  (1), Cadena & Beltran [2010] FMCAFam 1165, a decision of Halligan FM, as he then was; and (2), Gallo& Gallo [2012] FMCAFam 601, a decision which I handed down. She submitted that in applying the principles set out in these authorities the Court should note that the mother’s recent affidavit proposes a trip to (country omitted) and (country omitted) in (omitted) 2016, but the mother does not state the length of the proposed trip. There is a real question, it is submitted, as to the bona fides of the application in circumstances where the mother says she wishes to introduce the children to her heritage. Ms Spain queried the utility of this, given the children’s young ages. It was pointed out the children currently spend six nights a fortnight of the father. Given the young age of the children, particularly Y, it is submitted that she requires frequent time with the father which will not occur if that trip takes place. If the mother did not return to Australia with the children, there would be significant difficulty and expense in the father having an ongoing relationship with the children. As to threats to the children’s welfare, Ms Spain submitted that yellow fever is endemic in (country omitted) and mosquito-borne illnesses are also a risk, especially during wet season, which runs from May to August, the time when the proposed trip is to take place.

4. It was submitted that there is a high risk that the mother will not return in circumstances where she admits the following:  (a), she owns no property in Australia; (b), she has no full-time job but one (hobby omitted) a week; (c), she does not have Australian citizenship but has (country omitted) citizenship; (d), she has no family in Australia and all her close family are in (country omitted) or the (country omitted).

5. An additional consideration, and in my view, a particularly relevant consideration, is the fact that (country omitted) is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.  As Ms Spain submitted, it would be difficult for the father to bring about the children’s return to Australia if the mother was to remain in (country omitted) with them.

6. Finally, Ms Spain submitted, again referring to Line & Line[5] the principle which was set out was said by the Full Court as:

   In fixing an appropriate level of security for the return of the children, a trial judge should in the exercise of their discretion have regard to a number of relevant factors, including:  (a), the purpose of the security to provide a sum to realistically entice the person removing the children to return and to adequately provide the party remaining in Australia to take action for the return of the children;  (b), the degree of risk the departing parent will not return;  (c), whether the country of travel is a signatory to the Hague Convention on Child Abduction and the likelihood of deviation to a non-Convention country;  and (d), the financial circumstances of both parties and any hardship to any party if the level of security was increased or decreased.[6]

   [5] Supra

   [6] (1997) FLC 92-279 headnote

7. It was submitted that the sum of $200,000 would provide adequate incentive to the parent taking the children outside of Australia to return the children.

8. Mr Macpherson of Counsel for the mother submitted that the mother holds only a (country omitted) passport and she is not a citizen of (country omitted).  She is not able to reside permanently in (country omitted).  She has the right to live in the (country omitted) and Australia.  Mr Macpherson’s submission was that the mother wishes to travel at some stage to (country omitted) to visit with her mother, father and extended family for a period of about one month, possibly, but not definitely, in (omitted) 2016.  She also proposes to travel to the (country omitted) on that same trip.  The parties had proposed undertaking a similar trip prior to their separation.  His submission is that the mother understands that the issue arises because (country omitted) is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.  (country omitted) has acceded to that Convention.

1. The mother’s position was and is that she should provide a surety for such travel of $25,000 for each child; that is, $50,000.  Mr Macpherson submitted that the issues for determination are:  (1), should the mother be permitted to travel outside Australia – (2), the quantum of the surety the mother should provide so that she may travel with the children to (country omitted).  Mr Macpherson went on to submit that the parties are currently negotiating a settlement of their property and financial issues.  They assess the pool of assets available for distribution to be in the range of $500,000/600,000, largely comprised of real estate in Sydney.

2. Mr Macpherson also referred the Court to the well-known authorities of Kuebler & Kuebler and Line & Line.  In addition, he referred to a decision of Judge Brown in this Court of Raycliffe & Nilssen(No 2) [2001] FCCA 1810, and the decision of V & V [2004] FLC 93-201. Mr Macpherson submitted that the mother proposes to be in (country omitted) for a period of about four weeks, that the mother’s travel is bona fide to spend time with her family.

3. As the children live in a shared-care arrangement at the present time, it is submitted the travel will not impact significantly on the children’s relationship with the father.  A travel advice from Department of Foreign Affairs and Trade is attached to the mother’s affidavit.  It discloses no safety issues, and the mother and father had in fact proposed such travel prior to separation.  Mr Macpherson went on to submit that the mother cannot remain in (country omitted) without an application that would take 12 months to be decided.  She says she does not wish to reside in (country omitted).  She has not done so since she was 13 years old.  The mother submits that the amounts that she proposes by way of security, namely $25,000 per each child, are realistic.  The father’s proposal would mean the mother and children would never be able to travel to visit the mother’s family because it is prohibited.  Mr Macpherson submitted that the amount proposed by the mother of $25,000 is more than adequate to cover any eventuality.  It was further submitted the mother says she is not a flight risk.  The only country in which she could reside other than Australia is the (country omitted), a Convention country.  (country omitted) is not a Convention country.

4. The mother’s proposal would mean that she would be placing about 20 per cent of her net worth as security.  The father has not identified any hardship resulting from a $25,000 to $50,000 security.  The mother does not have income or assets in any country other than Australia.  The mother relied on a form of affidavit from the mother’s father, Mr R, who resides in (omitted) in (country omitted), in which he has deposed that he was aware the father was opposed to the mother travelling with the children to visit in (country omitted) but expressed the belief that Ms Tennant would never take the children away from their father, and he believed that Ms Tennant would return to Australia after her holiday to (country omitted) with his grandchildren.

Conclusions

1. The fact is that there is no concrete proposal by the mother to take the children out of Australia either to the (country omitted) or to (country omitted).  It is a wish that she has and it is not unreasonable in the circumstances.  The mother’s orders which she seeks in her Minute of Order do not seek permission for her to leave Australia with the children for any other destination at a particular time.  In fact, the first order that she seeks is for the names of the children to be placed on the Family Law Watch List, which would effectively prevent her or the father from taking the children out of Australia unless there were a Court order.  The mother does not have any specific proposal, although she has mentioned in her affidavits the possibility of (omitted) next year.  There have been no property proceedings commenced.

2. Mr Macpherson submits that the parties are presently negotiating for a settlement of their property interests, and they may well be successful in doing so.  They have proven an ability to negotiate interim and final parenting orders, with the exception of the question of international travel.  If they do not succeed in negotiating a settlement of their property matters, the mother will not have the funds to lodge any security to guarantee the return of the children to Australia.  Whether it be $25,000 for each child, as she submits, or $100,000 for each, as the father submits, she will not have the money.  If settlement negotiations for property are not brought to a conclusion, one or other party will need to apply to the Court for property orders.

3. This Court is very heavily listed.  This Court has a shortage of judges, as judges who have retired from the Court over the past 12 months have not been replaced.  The Chief Judge of the Federal Circuit Court has adverted to this very issue in the Court’s annual report, which has just been tabled in Federal Parliament.  It is a matter of common knowledge that the Court has vacancies at its Newcastle, Sydney, Parramatta, Melbourne and Adelaide registries, and it is a matter of common knowledge that another judge will retire from the Adelaide registry on 9 November.  The court lists have blown out.  A property application, if it were to be filed now, would not be returnable until the new year.  A Conciliation Conference would be unlikely to be obtained before about the middle of the year.  It is, of course, desirable for property matters to be resolved at Conciliation Conferences, although property matters in the Sydney Registry of the Court, which appears to have a more aggressively litigious culture than some other registries, indicate that the rate of settlement at conciliation conferences is lower than it should be.  If the matter were to go to a final hearing, it would not be heard until 2017.  Short of an agreement between the parties about settlement, which would put the mother in funds to provide some sort of security, the mother will not have the funds to do so.

4. There is another difficulty.  The mother’s proposed orders attempt to predict what would be an appropriate level of security for an amount to be lodged if the mother were to seek to take the children out of Australia.  This is a very difficult prediction to make.  For a start, there is no date or dates as to when the mother would wish to take the children out of Australia, and there are two possible destinations that appear to be in contention.  The first is the (country omitted).  As I told counsel for the parties at the hearing, I did not see that there was a great deal of concern about a proposed visit to the (country omitted), per se.  (country omitted) is a country that has a well-established legal system and it is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.  The threat to the safety of tourists to the (country omitted) is relatively low.  It is well-known that it is a politically stable country with no particular concerns about public health.  The difficulty with travel to the (country omitted) is that if the mother did wish to travel there, it would be relatively simple to arrange for travel from the (country omitted) to (country omitted).  There are regular flights between the (country omitted) and (country omitted), which relate to the countries’ shared history.  (country omitted) is not a signatory to the Hague Convention.  (country omitted) does not appear to have the same degree of safety as far as public health is concerned, and indeed, the mother has stated that if she were able to take the children to (country omitted), she would arrange for them to be vaccinated against yellow fever, which is apparently endemic in that country.  The Court has been given no particular evidence about political stability in (country omitted) or the strength or otherwise of its legal system.  My view at this stage is that any proposal to take the children to (country omitted) should be treated with some caution.

5. This then gets back to the proposed levels of security that are being offered.  If the security relates to a visit to the (country omitted) solely, then $100,000 for each child, as the father submits, would appear to be more than is necessary.  A figure of $25,000, as submitted by the father, would appear to be adequate as a level of security to travel to the (country omitted).  The situation in my view is very different for (country omitted) due to the greater risks involved.

6. The other concern that the Court has is that the Court is being asked to set figures without a concrete proposal.  In my view, this is an impossible task.  If the Court were to put a monetary value on proposed surety now for a visit to one or other country at some time in the future, it is fair to say that any figure set would be highly likely to be wrong.  In my view, inconvenient though it may be, the only time when a Court can be expected to make some accurate orders relating to travel out of Australia by a parent with children is when the parties are actually able to put to the Court what the circumstances of the proposed trip will be, when the travel is proposed and the duration of the proposed trip.  The dates are particularly important because in a changing world situation, situations can arise which cannot be accurately predicted.  One only has to consider the disastrous events of 11 September 2001 when airliners were flown into the two buildings of the World Trade Centre in New York.  It is unlikely that any Court on being required to assess the dangers of travelling to New York in the United States in the months leading up to that event would have had any inkling that such a tragic and apparently improbable event would occur.  That is why it is difficult and well-nigh impossible for the Court to make accurate predictions about some event that may or may not happen in a foreign country at some unspecified time in the future.

7. What needs to be done is for orders to be made at this stage to keep the children’s names on the Family Law Watch List and make injunctive orders restraining the parties from removing or attempting to remove the children from the country.  I am not persuaded that it is beneficial for children’s names to remain on the Family Law Watch List from a young age as a final order without an end date, other than the children’s 18th birthday.  This Court has seen far too many examples of forgotten watch list orders placed on a child beyond people’s memory to preclude legitimate travel by children in their teens, bringing about a frantic application to the Court to remove the children’s names in order that the children may be able to undertake a holiday.  Sometimes that has not been able to be done in time.  The Court is well aware that the Australian Federal Police is of the view that there are more names of children on the family law watch list than are reasonably necessary, and in many cases the need for the children’s names to be on that list has long gone.  It is the policy of the Court to place an end date on watch list orders.  Such orders can always be reviewed and extended by a Court if necessary, or removed by a Court if necessary.  They should not be forgotten.  In my view, the appropriate order at this stage, noting the very young ages of these children who were born in 2011 and 2013, is to place the names of the children on the Family Law Watch List for a period of three years.  It can be extended, if necessary.  All of the circumstances may have changed in three years, and the names on the watch list can be allowed to expire.

8. There should be a provision that either parent should be able to raise a proposal with the other parent to take the children out of Australia for a holiday, not necessarily to the (country omitted) or to (country omitted) but to such common holiday destinations perhaps as Bali or Fiji or New Zealand.  In each case, the time limits proposed by the parties of only 21 days prior to the date of proposed travel do not seem to me to be realistic and a greater period of time should be allowed.  In my view, negotiations should start not less than six weeks before any intended date of departure.

9. I am not in a position to make any orders requiring the parties to agree on possession of passports or travelling on passports.  I will make orders as to what will take place.  I am of the view that if passports are to be issued for the children, they can be held at the Sydney Registry of this Court.  I am also of the view that, since it seems to be an issue between the parties, the children should travel on their Australian passports.

10. I will not set an order for monetary security because, in my view, it is a futile exercise.

11. If the parties can agree at some stage in the future about overseas travel, then that would be desirable and in the best interests of the children.  At face value, for the children at some age to visit those countries from where their mother hails, (country omitted) where their mother was born and grew up as a little girl, and the (country omitted) where she lived during her teens and where she still has family, that would appear to be in the children’s best interests, but whatever international travel is intended, there will need to be a specific proposal made at the time with a set of dates so that the parties can either agree, or if they fail to agree then the matter will need to come back to Court.  This Court deals with a significant number of applications to take children out of Australia for specific periods of time and is able to do so relatively speedily.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date: 30 October 2015