Ewer and Barnard

[2009] FamCA 1304

FAMILY COURT OF AUSTRALIA

EWER & BARNARD [2009] FamCA 1304

FAMILY LAW – CHILDREN – relocation – with whom a child lives – children travel overseas accompanied

Family Law Act1975 (Cth)

APPLICANT: Ms Ewer

RESPONDENT: Mr Barnard

FILE NUMBER: SYC 6497 of 2009

DATE DELIVERED: 1 December 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 1 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Levy

SOLICITOR FOR THE APPLICANT: Barkus Doolan Kelly

COUNSEL FOR THE RESPONDENT: Mr Geddes QC

SOLICITOR FOR THE RESPONDENT: Lander & Rogers

Orders

1. Orders are made in terms of paragraphs 1 and 4 of the document titled “Minute of Orders” marked Exhibit A as set out hereunder, replacing “7” with “21” in paragraph 4:

   “1.That for the purpose of the children spending time with the father from 2 January 2010 to 22 January 2010 in Tokyo, Japan, the children travel to and from Tokyo, Japan, accompanied by the father or a person familiar with the children (including the father’s partner, [Ms F]).

   4.That each party have liberty to relist the matter on 21 days’ written notice.”

2. Pursuant to Section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the children S born … August 1999 and C born … July 2001.

3. Legal Aid New South Wales is requested to make arrangements as soon as possible for appropriate representation for the children.

4. The solicitor for the mother is to advise the Senior Solicitor, Family Law Litigation Section of Legal Aid New South Wales of this order within 24 hours.

5. Each party make available to Legal Aid New South Wales, as soon as practicable, copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports.

6. That the mother and father facilitate the attendance of the children upon their representative at times and dates requested by the representative.

7. That the parties attend upon a Family Consultant for the purposes of the Child Responsive Program and, at the direction of the Family Consultant, facilitate the attendance of the children similarly AND the Court noted it may be convenient for interviews be conducted at a time in January 2010 to coincide with the father’s return to Australia.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC 6497 of 2009

MS EWER

Applicant

And

MR BARNARD

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to two children, S and C. They were born in August 1999 and July 2001, respectively, and are 10 and eight years of age.  Their mother is 41 and their father is 45.  The parents started to live together in 1996, were married in 1997 and separated in 2003.  I understand that the family was in Singapore at the point of separation. Orders were crafted in terms agreed between the parties in 2005 which provided, among other things, for the children to live with the mother. 

2. The evidence suggests that at that time the father continued to work in Singapore but was seeking employment in Sydney where the mother lived, and lives with the children. The orders include an injunction in relation to the children being moved from Sydney and very detailed orders about webcam communication and facilities and addressing the issue of airline travel. The orders require that the father accompany the children on flights for the purposes of them attending upon him in Singapore.

3. The mother brings the proceedings back to court. She filed an application on 28 October 2009. Some interim orders were included in that application. The substantive application is listed on 11 December 2009 but interim orders are sought and that brings the matter here today. Both parties want some changes made to the 2005 orders, unhappily different changes.

4. The parties have yet to see a Family Consultant. There are issues which would warrant the children being represented. They are getting to an age where it is accepted that they should have the opportunity of taking some part in the proceedings. They are not obliged to take part but should have the opportunity to do so. The father proposes that the children live with him for the time being in Japan. That too would be a basis for appointing a lawyer for the children.

5. The mother seeks to relocate closer to an enclave of her family in Tasmania. For reasons that seem to relate to, in part at least, the mother’s desire for such a move, the father has revived an application for the children to live with him in Japan.

6. I have said to the parties today that those are issues that cannot be properly dealt with on an interim basis. In any event, the court will be reluctant to take a significant step in the proceedings until the pre-conditions of counselling and the appointment of an Independent Child Lawyer, have been met. If the children need to be represented, that should happen, and the parties need to see the Family Consultant, not so much for the benefit of the parties who I accept have undertaken some level of family relationship therapy to try and resolve things but so that the Court has advice about any pathology that might exist in either of the parents, any pathology that may exist in relation to one of the children, any matters that might warrant the proceedings being expedited, matters that might warrant involvement of the State Department, any particular qualifications which a Chapter 15 expert should possess. Further, through the child responsive model, the court would have the assistance of a Child and Parent Issues Assessment so we know about the issues in the case.

7. The remaining controversy is an almost non-justiciable issue - should, for the purposes of travel to spend time with the father in Japan at Christmas time, these children travel accompanied or unaccompanied. This is one of those happy cases where I do not need to take any risk with the children. It is practicable for the children to travel accompanied. The father’s case is quite simple. He says that four years have gone by since the orders put in place the requirement for accompanied travel – why not relax the requirement? It was put in submissions earlier today that he had reason to believe from some things that the mother has said, that she took a similar view, until quite recently. He argues that the 2005 orders have lost currency in some other respects, because both parties are asking for the orders to be changed.

8. From the mother’s point of view, it is argued that there is no evidence to suggest that the pre-conditions for the orders the parties put in place in 2005, have changed and therefore there is no basis for changing the orders. 

9. I am to make orders in the best interests of a child.  How one does that is described in the legislation.  The legislation does not prescribe an outcome on things as precise as this issue.  Section 60CC has a number of elements that one would refer to in relation to making decisions about children.

10. There are primary considerations. They are the benefit of a child having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, being subjected or exposed to abuse, neglect or family violence.

11. There is no evidence about any of that before me. As to their wishes, there is no assertion about the views of the children on this issue. I do not know anything about the nature of the relationship of the children with the parents.  I think one could infer it is good enough, because each of them proposes that the children spend significant unsupervised time with the other parent.

12. As to the willingness and ability of each of the parents to facilitate and encourage a close relationship. There is nothing I can say about that on the evidence before me.

13. As to the likely effect of changes in the child’s circumstances, including separation from a parent or somebody else. There is nothing I can say about that.

14. As to any practical difficulties and expense – I am told that there will be a cost associated with this and that the father can meet it.

15. As to the capacity of the parents - by inference the mother’s view is that the father does not have the best interests of the children in mind. I assume he has a similar jaundiced view about her sticking to what he sees as an outdated requirement.

16. As to the maturity, sex, lifestyle and background of the children. They are ten and eight. I do not know whether they are up with their cohort or not. The children have experienced overseas travel before. There is not a scintilla of evidence about whether they cope with that well or badly.

17. The children are not of Aboriginal or Torres Strait Islander background.

18. As to the attitudes to the children and the responsibility of the parenthood – no major criticism is levied against either parent. Neither suggests that time with the other parent stop or be supervised. There is implied criticism in the issues before me but nothing more than that. There is certainly no evidence. 

19. There is no evidence about family violence. I am to try and make an order that will not lead to further litigation. I can’t do that. There is a catch all criterion - anything else that the court thinks is relevant. In that regard, I am told about the requirements of Qantas, who are the carrier of choice. There is facility available for unaccompanied travel for children who are five to 11.

20. It is common for courts to act in a conservative way in relation to children.  Children of parents who have separated have not always experienced the best of circumstances as a general proposition. I do not mean to be disrespectful in the context of this case, but it is not uncommon that children in a separated family are not as robust psychologically or psychiatrically or emotionally as children who have not experienced the separation of their parents and in this case, separation for long periods from one parent.

21. For those reasons the rules put in place by Qantas are not determinative of the issue. The carrier’s interests would be influenced by what their insurer tells them and how much trouble unaccompanied children will be to the cabin stewards.

22. I do not need to make the decision that the children travel unaccompanied.  The parties set in train a process where the standard was that they be accompanied. In the absence of any evidence that that needs to change, I will not change it.

23. The document titled Minute of Orders is exhibit A and I make orders in terms of paragraphs 1 and 4 replacing 7 with 21 in paragraph 4.

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate:

Date:  15 December 2009