Epardis and Mahmoud

[2013] FamCA 543

FAMILY COURT OF AUSTRALIA

EPARDIS & MAHMOUD [2013] FamCA 543

FAMILY LAW – interim– whether children can travel to Country D.

Family Law Act 1975 (Cth)

APPLICANT: Ms Empardis

RESPONDENT: Mr Mahmoud

INDEPENDENT CHILDREN’S LAWYER: Mr Holmes

FILE NUMBER: SYC 1210 of 2011

DATE DELIVERED: 17 June 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 17 June 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Diana Perla & Associates

COUNSEL FOR THE RESPONDENT: Mr Miller

SOLICITOR FOR THE RESPONDENT: Barkus Doolan Kelly

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER: KDB Holmes Solicitors

Orders

1. I make an order in the terms of paragraphs 1, 6, 7 of the mother’s application filed 11 June 2013 as follows:

   1.That the applicant mother be authorized to remove the children B born 3 November 1997 and C born 22 September 1999 (“the children”) from the Commonwealth of Australia for travel to the Country D departing 22 June 2013 and returning no later than 14 July 2013.

   6.That the applicant mother be forthwith entitled to uplift the children’s Australian and Country D passports from the mother’s lawyers.

   7.That upon the applicant mother’s return to Australia she shall hand the Australian and Country D passports of the children to the mother’s lawyer who shall retain them and not release them to either parent without the joint signed request from the parents or court order.

2. Until further order, the mother shall not:

   2.1.Do any act or thing or sign any document to in any way advance the education of either of the children outside of Australia including making any application for admission or enrolment in an educational institution, attending any interview for such purpose, causing or permitting either of the children to attend any interview or testing or assessment or to prepare for any assessment or testing procedure or to visit any educational institution outside of Australia.

   2.2.Speak to either of the children in relation to any education of the children outside of Australia or the prospect of either of the children living outside of Australia.

   2.3.Discuss any aspect of these proceedings with either of the children.

   2.4.Cause or permit any other person including the children to doing the acts prohibited by paragraphs 1, 2 and 3.

3. Until further order, the father shall not discuss any aspect of these proceedings with either of the children.

4. Reserve the costs of all parties of this application.

5. This matter be listed before Justice Le Poer Trench for a procedural mention at the earliest possible date.

6. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Epardis & Mahmoud 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 1210 of 2011

Ms Empardis

Applicant

And

Mr Mahmoud

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The mother has brought an application which she filed on 11 June 2013 as a result of the father indicating that in his view, she had not complied with the requirements of an order that he consented to in 2012 to the effect that the mother would be able, during the Country D summer holidays and the Australian school holidays, to travel to Country D with the two children.  That position, in my view, was not one that he could properly take.  The document that had been sent to his lawyers from the mother’s lawyers is dated 24 May 2013.

2. It sets out the proposed departure dates of the children from Australia, the proposed dates when they would return to Sydney, their destination in the Country D.  It went on to set out where the children would be staying whilst they were in the Country D, specifying the precise address.  It also sets out the contact telephone number.  The father says that that was insufficient in his view, because on a previous occasion the mother had not properly provided an itinerary that she stuck to.  Now, the document of itself, however, does enough in my view to comply with the order.

3. It’s not the case that the provisional itinerary by a parent who is travelling overseas with children needs to specify everything they are going to do during each day or where they will travel to each day if they are staying consistently at the one accommodation throughout the whole of the trip. In those circumstances, the mother applies that the court make an order specifically authorising the removal of the children for this specific trip, and other consequential orders relating to the uplifting of passports.  The mother also makes an application for the costs of the application. 

4. The father asks that the mother’s application be dismissed in a response filed in court today.  After discussion with myself, a minute of order was drafted.  The independent children’s lawyer seeks that I make that order which is in the form contained in exhibit 2.  In relation to order 1.1 as sought by the independent children’s lawyer, the mother doesn’t agree to the final words of that order, which are “or to visit any educational institution outside Australia”.  The mother also seeks an amendment to order 1.2 as sought by the inclusion of the word “secondary” before the word “education” in the first line of that order.  The father does not oppose an order being made in the terms of exhibit 2 if he is unsuccessful in his application to have the mother’s application dismissed.

5. It seems either way that dismissal of the mother’s application would not necessarily absolutely resolve the matter, because it is not clear to me that the father believes he would be in breach of an order if he refused to facilitate the uplifting of the children’s passports in circumstances where he continues to maintain that the itinerary has not been provided.  Because the father’s disquiet in relation to the mother going to the Country D arises out of a long-running dispute between the parents in relation to the children having the opportunity to experience some schooling in the Country D, Dr E in his most recent report comments on that conflict, and everybody agrees before me today that it’s a matter that needs to be resolved with a final hearing.

6. On their face, the orders that the mother substantially agrees to would put in place a specific regime that would give the father some basis of being assured that what he fears won’t happen.  The level of distrust is such, however, that the father submits that even though I’ve been specifically asked to make these orders by the independent children’s lawyer with the mother present in court, I shouldn’t assume that she would obey any order that I make.  The basis of that mistrust arises from what is in exhibit 2.  The contents of those documents have been extensively canvassed in submissions, and I won’t repeat what has been said.

7. The husband asserts there was a clear breach in those documents of an interim order for joint parental responsibility.  In relation to the letter from the F School and the G School, it seems that the father actually agreed to the process that led to those letters being written.  The mother has unilaterally taken some action in relation to the girls’ involvement with schools in the Country D at the end of last year, and she has written to, inter alia, the husband’s mother and sister more recently in relation to the possibility of pursuing the course that she wishes the court to adopt on a final hearing basis.

8. However, when I take the orders proposed by exhibit 2 into account with the other documents which have also been marked exhibit 2, I’m satisfied that there is sufficient protection in place to ensure that the children won’t be involved in anything else but a family holiday to the Country D.  In relation to the question of costs, it’s a testament to the standard feeling on both sides that the matter is before the court today, and I don’t intend to make any order for costs but I intend to make an order that would give effect to the original intention of the consent order, because I think that that’s in the best interests of the little two girls.

9. I think it’s appropriate for whatever short holidays happen between now and the final hearing in the Country D that the children not be taken to any educational institution at all, and there really shouldn’t be a need to discuss the children’s university education in the Country D with them between now and the final hearing, so that would put that to rest as well. 

10. I will make a direction that this matter be placed before Le Poer Trench J for a procedural mention at the earliest possible date.

I certify that the preceding ten (10) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 17 June 2013.

Associate: 

Date:  22.7.13