FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Davin & Kerrane [2023] FedCFamC1F 853
File number(s): SYC 6089 of 2023 Judgment of: SCHONELL J Date of judgment: 11 October 2023 Catchwords: FAMILY LAW – PARENTING – Interim orders – Relocation – Where the mother sought to return to the United Kingdom pending the final hearing – Where final hearing dates have been allocated in March next year – Where the father opposed the interim relocation on the basis that there was a risk that the mother would not return with the child – Where there is no evidence that the mother would not return – Where the child is very young and has previously spent three months away with the mother in the United Kingdom – Where the father contended that his relationship with the child would be impacted if the child was to spend another three months in the United Kingdom – Where the Court is satisfied that the mother has no support networks in Australia, that her health is compromised in Australia and that she would be better supported in the United Kingdom – Relocation allowed pending final hearing. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 69ZL Cases cited: DeLuca & Farnham [2019] FamCAFC 100
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Kuebler & Kuebler (1978) FLC 90-434; [1978] FamCA 26
Line v Line (1997) FLC 92-729; [1996] FamCA 145
Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520
Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22
Division: Division 1 First Instance Number of paragraphs: 64 Date of hearing: 5 October 2023 Place: Sydney Counsel for the Applicant: Mr Scarlett OAM RFD Solicitor for the Applicant: Boyce & Boyce Counsel for the Respondent: Mr Guterres Solicitor for the Respondent: Rubin Blight Hardy Family Lawyers & Mediators ORDERS
SYC 6089 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DAVIN
Applicant
AND: MS KERRANE
Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
11 OCTOBER 2023
THE COURT ORDERS THAT:
1.The Australian Federal Police be directed to forthwith remove the name of the child X (“the child”) born 2023 from the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.
2.The solicitors for the respondent mother (“the mother”) shall give effect to Order 1 by informing the Australian Federal Police forthwith upon these orders being made and providing them with a copy of these orders.
3.Subject to these orders and for the purposes of s 65Y of the Family Law Act 1975 (Cth), the mother is permitted to remove the child from the Commonwealth of Australia not before 13 November 2023, specifically for the purposes of residing in the United Kingdom with the child.
4.The mother shall return the child to the Commonwealth of Australia by no later than February 2024.
5.Forthwith and prior to the mother’s departure from Australia, for the purposes of…
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- Davin & Kerrane [2023] FedCFamC1F 853
- Case
- [2023] FedCFamC1F 853
- Decision Date
CaseChat Overview and Summary
The court had to determine if the mother should be allowed to relocate with the child and what interim arrangements should be put in place concerning the father’s access to the child. The court considered the primary and secondary considerations under the Family Law Act 1975 (Cth), including the benefit to the child of having a meaningful relationship with both parents, the need to protect the child from harm, and the child's best interests. The court was satisfied that there was no evidence that Ms. Kerrane would not return with the child and that she would be better supported in the United Kingdom, where she has support networks and her health is compromised in Australia.
The court allowed the mother to relocate to the United Kingdom with the child pending the final hearing, subject to certain conditions. These included the mother returning the child to Australia by February 2024, the payment of a security bond, and the establishment of specific access arrangements for the father. The father was also required to facilitate video calls with the child and provide updates on the child's health and development. The court dismissed the father's application for interim orders regarding travel and passports, as it was not convinced that such injunctions were necessary for the child’s welfare or in the child's best interests.
Orders
Orders of the court
SYC 6089 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR DAVIN
Applicant
AND:
MS KERRANE
Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
11 OCTOBER 2023
THE COURT ORDERS THAT:
1. The Australian Federal Police be directed to forthwith remove the name of the child X (“the child”) born 2023 from the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.
2. The solicitors for the respondent mother (“the mother”) shall give effect to Order 1 by informing the Australian Federal Police forthwith upon these orders being made and providing them with a copy of these orders.
3. Subject to these orders and for the purposes of s 65Y of the Family Law Act 1975 (Cth), the mother is permitted to remove the child from the Commonwealth of Australia not before 13 November 2023, specifically for the purposes of residing in the United Kingdom with the child.
4. The mother shall return the child to the Commonwealth of Australia by no later than February 2024.
5. Forthwith and prior to the mother’s departure from Australia, for the purposes of these orders, the mother shall pay a security bond for the return of the child to Australia, in the amount of $20,000 by way of bank cheque, with such sum to be held on trust for both parties by the mother’s solicitors and to be disbursed as follows:
(a) to be repaid to the mother in full within seven (7) days of her return to Australia; or
(b) to be paid on account of any legal and/other appropriate fees incurred by the applicant father (“the father”) if the mother fails to return the child to Australia and for the purposes of this order, the father shall provide all necessary invoices and accounts to the mother’s solicitor for payment.
6. Between the date of these orders and the mother’s travel to the United Kingdom, the father shall spend time with the child as follows:
(a) Every Wednesday and Thursday from 6.00 am to 8.00 am, with such time to occur at the mother’s residence while the mother is not present unless otherwise agreed between the parties in writing; and
(b) Every Saturday and Sunday from 10.00 am to 1.00 pm.
7. Pending the mother returning to Australia:
(a) The mother shall facilitate video calls between the father and the child at times agreed between the parties in writing but failing agreement, each Monday, Wednesday and Saturday at 11.00 am UK time (being approximately 8.00 pm Sydney time);
(b) Each Friday, the mother shall send an email to the father providing him with an update in respect of the child, including but not limited to details of the child’s health, developmental progress, social activities, and providing photos; and
(c) In the event the father travels to the United Kingdom, and upon the giving of no less than 14 days’ written notice to the mother of his dates of travel, the father shall spend time with the child as agreed between the parties and failing agreement as follows:
(i) On the first, second and third days the father is in the United Kingdom, he shall spend time with the child in the presence of the mother for up to two hours each day; and
(ii) Thereafter, each day for his remaining visit, the father will spend up to three hours each day with the child, without the mother being present, unless otherwise agreed between the parties in writing.
8. The father shall spend time with the child from the child’s return to Australia as follows:
(a) For the first three days that the child and mother are in Sydney, the father shall spend time with the child in the presence of the mother for up to three hours each day;
(b) Thereafter, the father shall spend time with the child as follows:
(i) Up to four hours each Saturday and Sunday between 10.00 am and 2.00 pm unless otherwise agreed between the parties in writing;
(ii) For the purposes of this order, in the event the mother does not have access to or the use of a car, the father shall be responsible for collecting the child from the mother at the commencement of his time and returning the child to the mother at the conclusion of his time and shall have installed an age appropriate car seat for the child in his car.
9. For the purposes of these orders, the father must be always present during his time with the child. In the event the father is not available to care for the child pursuant to these orders, he must provide the mother with no less than twelve hours’ notice that he is unavailable.
10. Each party shall do all acts and things and provide all necessary authorities to enable the other party to liaise directly with the child’s medical practitioners and to provide that party with any information he or she may request from time to time in relation to the child’s health.
11. Each party shall keep the other advised of their current residential address, email address and contact telephone number and advise the other of any changes within forty-eight hours of such occurring.
12. Each party shall forthwith notify the other of any serious illnesses or injuries suffered by the child while in that party’s care and shall provide reasonable particulars as to the name and contact details of the child’s treating doctor and any hospital, medical facility, or healthcare provider to which the child has been taken.
13. The parties’ applications for interim orders are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Accordingly, I am not satisfied that the injunctions the father seeks as to travel or passports are necessary for the child’s welfare or in the child’s best interests. I will now consider what arrangements should be made for time between the father and child and whether it is in the child’s best interests to leave Australia.PRIMARY AND SECOND CONSIDERATIONS In applying the primary considerations, the benefit to the child of having a meaningful relationship with both parents is subservient to the need to protect the child from the risks and harms identified in the subsection. A meaningful relationship “is one which is important, significant and valuable to the child” (Mazorski & Albright (2007) 37 Fam LR 518 at [26], cited with approval by the Full Court in Sigley & Evor (2011) 44 Fam LR 439). Both parties are of the view that it is important the child have a meaningful relationship with the other parent. In that respect, the quantum of time that each party proposed for the child to spend time with the other parent is not markedly different. For example, in the case of the father, he sought orders that he spend time with the child on each Saturday and Sunday for a period of four hours. For the mother’s part, her orders contemplated that the child spend time with the father each Wednesday and Thursday from 6.00 am to 8.00 am at the mother’s residence and each Saturday and Sunday from 10.00 am to 12.00 pm. After eight weeks, the mother proposed that the father spend time each alternate weekend on a Saturday and Sunday from 9.00 am to 1.00 pm as well as continuing the time each Wednesday and Thursday between 6.00 am and 8.00 am. The real contest about meaningful relationship is the disruption to the father’s relationship with the child that would be occasioned if the mother were permitted to travel to the United Kingdom with the child pending the final hearing. I have no expert evidence that would enable me to make any informed decision but accept that there would obviously be some disruption to the child’s relationship with his father if the mother were permitted to travel. I note, however, that the mother proposed that she would return to Australia by 1 February 2024 and that she does not propose to leave until October 2023. In those circumstances, therefore, any disruption is for a period of approximately three months. Nevertheless, in the life of a small child and in circumstances where there has already been some disruption to the child’s relationship with his father by virtue of the mother returning to the United Kingdom with the father’s consent in mid-2023, there will be further disruption to that relationship. Fortunately, in this matter there are no matters of risk or harm raised by either party other than the father’s fear that the mother will not return. In determining what is in the best interests of the child, I will now consider the additional considerations as far as they are relevant. The child is of an age where he is unable to express a view. I am satisfied that the child has a close and nurturing relationship with his mother and a developing relationship with his father. I also accept that he has a relationship with the maternal grandparents and the potential to develop a relationship with the paternal grandparents.