Feeney & Feeney

Case [2022] FedCFamC1F 420

Federal Circuit and Family Court of Australia

(DIVISION 1)

Feeney & Feeney [2022] FedCFamC1F 420

File number(s): SYC 8031 of 2019
Judgment of: MCCLELLAND DCJ
Date of judgment: 10 June 2022
Catchwords: FAMILY LAW – PARENTING – Airport watchlist – Whether the child should be placed on the airport watchlist – Where the mother has previously unilaterally left the child in Country F – Current political volatility of Country F-Country G conflict – Imminent sale of mother’s Sydney property creates a period in which mother lacks residential ties in Australia – Unacceptable risk of mother removing the child from the Commonwealth until the mother purchases new property in Australia – Child placed on airport watchlist.
Legislation:

Family Law Act 1975 (Cth) Pt VII, ss 43, 60B, 60CA, 60CC, 65Y, 67ZC

Hague Convention on the Civil Aspects of International Child Abduction

Cases cited:

Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36

Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5

Fogarty, John, “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249

Johnson & Page (2007) FLC 93-344; [2007] FamCA 1235

Line & Line (1996) 21 Fam LR 156

N and S (1996) FLC 92-655; [1996] FamCA 139

Napier & Hepburn (2006) FLC 93-303; [2006] FamCA 1316

Nikolakis & Nikolakis [2010] FamCAFC 52

Rice and Asplund (1979) FLC 90-725; [1978] FamCAFC 128
Division: Division 1 First Instance
Number of paragraphs: 134
Date of hearing: 4 April 2022
Place: Sydney
Counsel for the Applicant: Ms Spain
Solicitor for the Applicant: Edwards Family Lawyers
Counsel for the Respondent: Ms Cantrall
Solicitor for the Respondent: ATW Family Law

ORDERS

SYC 8031 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR FEENEY

Applicant
AND:

MS FEENEY

Respondent

order made by:

MCCLELLAND DCJ

DATE OF ORDER:

10 june 2022

THE COURT ORDERS THAT:

1.That each party, MR FEENEY born 1975 and MS FEENEY born 1983, and their servants and/or agents be and are hereby restrained by injunction, irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975 (Cth), from removing, attempting to remove or causing or permitting the removal of X, born 2016 (“the child”), from the Commonwealth of Australia until the child is 18 years of age or such earlier time as the parties agree in writing.

2.IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the child on the Family Law Watchlist, in force at all points of arrival and departure in the Commonwealth of Australia, and maintain the child's name on the Watchlist until the child is 18 years of age or such earlier time as the parties agree in writing.

THE COURT NOTES THAT:

A.The parties acknowledge that, consistent with the principles adumbrated in Rice and Asplund (1979) FLC 90-725, there may, in the future, be changed circumstances of sufficient significance such that either party is justified in bringing further proceedings to…

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AGLC
Feeney & Feeney [2022] FedCFamC1F 420
Case
[2022] FedCFamC1F 420
Decision Date

CaseChat Overview and Summary

The case of Feeney & Feeney involves a dispute between the mother and father regarding the care and custody of their child, as well as property settlement issues following their separation. The mother and father have differing views on the date of their marriage and separation, with the court accepting the mother's contention that they separated in March or April 2019. The court was required to decide on parenting and property matters, with a particular focus on the risk of the mother travelling to her home country, Country F, with the child. The court also needed to evaluate the parents' respective roles in caring for the child and their overall suitability as parents.
The court found that both parents were good and capable caregivers for the child, with the mother spending more time with the child prior to their separation due to the father's work commitments. The court acknowledged the mother's irresponsible decision to travel to Country F with the child without the father's consent, but also recognised the circumstances that led her to make that decision. The court emphasised the importance of the child maintaining a connection to both Country F and Country H, but also considered the risk of the mother travelling with the child. The court ultimately determined that the best interests of the child would be served by maintaining a connection to both countries while also mitigating the risks associated with international travel.

The court ordered that the mother retain the settlement monies in an ANZ Bank account while she searches for a property in the C Region. The court further ordered that the mother pay the father $500 per week by way of rental payments for any period that she remains living at the former matrimonial home, not exceeding a further three months. The court also ordered that the mother commit funds available to her to acquire another property in Australia, to reduce the risk of her travelling to Country F with the child. The court's decision was based on a careful consideration of the primary and additional considerations set out in s 60CC(2) and (3) of the Act, with a particular focus on the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm. The court also considered issues relating to the parents' decision-making, time spent with the child, and capacity to provide for the child's needs.

Orders

Orders of the court

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Background

Background to the litigation

The mother relied upon the following documents:·Amended Response filed 18 March 2022;·Affidavit of the mother filed 18 March 2022 (“the mother’s primary affidavit”);·Affidavit of the mother filed 1 April 2022 (“the mother’s secondary affidavit”); and·Case Outline for the mother filed 1 April 2022.Background The mother was born in Country F in 1983 and is currently aged 39. The mother came to Australia when she was 17 years old and has lived here since that time. The mother was granted permanent residency in 2007 and became an Australian citizen in 2012. She is a professional and works as a manager for a multinational company. The father was born in Country H in 1975 and is now aged 46. He has been living in Australia since 2007 and is a permanent resident of Australia. The parties commenced living together in 2012 and the mother contends that they were married in 2013, while the father deposes that the parties were married in 2014. There is also a dispute between the parties as to the date of separation however, for the purposes of this decision, I accept the mother’s contention that they separated in March or April 2019. Both parties acknowledge that, after separation, they have continued to live separately but under the one roof until the present time. The father filed an Initiating Application seeking both parenting and property orders on 26 November 2019. He successfully obtained an interim order placing the child on the airport watchlist. In November 2021, the parties resolved all other issues in dispute. The outcome of the property proceedings, by way of summary, was that the father was to retain the former matrimonial home and provide the mother with a payment of $1,050,000, together with a superannuation splitting order. The parties have agreed for the mother to continue residing in the former matrimonial home for a period of six months after the settlement date, being 20 January 2022. After the initial three months, the mother will be required to pay the father $500 per week by way of rental payments for any period that she remains living at the property, not exceeding a further three months. The mother currently has the settlement monies in an ANZ Bank account while she searches for a property. She intends to purchase a property in the C Region in relatively close proximity to where the father currently resides. To supplement the funds that she has available from the property settlement, the mother has placed a unit that she owns in Suburb B on the market. The mother’s intention to purchase a property in the C Region is consistent with an agreement between the parties that they would live within 30 minutes travelling distance from each other. This is a significant issue in the proceedings. The father contends that, unless and until the mother commits funds that are available to her to acquire another property in Australia, there is an increased risk that she will travel to Country F with the child. I accept that currently there is such an increased risk of the mother travelling, particularly after the time she sells her current Suburb B property and before she acquires a property in the C Region in accordance with her stated intention.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It was acknowledged by both parents that it is desirable for the child to have and develop a cultural connection to both Country F and Country H and both parents further recognised that, issues of risk aside, it would be in the child’s best interests to be able to travel to those countries. The father contended, however, that the issue of risk is such that it tips the scales against the child benefitting from being able to engage in international travel.Issues relating to the parents – decision making, time spent with the child, fulfilment of obligations to maintain the child attitude, capacity and exercise of parental responsibility Both parties acknowledge the other party as being a good and capable parent. One area in which the parties proffer differing evidence is in respect to the extent to which the father cared for and spent time with the child in the period prior to the child travelling to Country F in May 2019. The mother contends that, as result of work commitments, the father would return home late and spend many nights away from the child. I am satisfied that both of the parents’ working commitments impacted upon the time that they otherwise would have liked to have spent with the child. In particular, I am satisfied that the father’s working commitments were such that it is probable that the mother spent a greater proportion of her time caring for the child than the father did in the period prior to the mother travelling to Country F with the child in May 2019. However, the mother acknowledges that, subsequent to her return from Country F in September 2019 with the child, the father has been a much more engaged parent. I am satisfied that both parents are engaged with the child. They are dedicated to caring for her and provide appropriate physical, emotional and intellectual support and encouragement. They are both, as I have said, good parents. The mother, through her counsel, acknowledges that she acted in an irresponsible manner in travelling to Country F with the child in May 2019, in circumstances where she acknowledges that the father did not consent to that occurring. In evaluating the mother’s conduct, I acknowledge the circumstances in which the mother felt compelled to take that course of action, where she was concerned about childcare arrangements for the child during the busy months of the end of the financial year where she had particularly significant responsibilities in her employment. I further accept that the mother found the father’s responses to her request to find a solution to be most unsatisfactory. Indeed, the father’s responses were self-focused and showed little empathy for the circumstances confronted by the mother. In that respect, while the father implored the mother to work towards a compromise, he did not himself propose an alternative course to the mother travelling to Country F such as, for instance, engaging the services of a nanny. Nevertheless, for a parent to remove a child from the Commonwealth of Australia without the consent of the other parent is a grossly irresponsible act and one which cannot be lightly dismissed. Issues of family violence

Ratio Decidendi

Legal Principle Established

The primary considerations set out in s 60CC(2) of the Act are as follows:·the benefit to the child of having a meaningful relationship with both of the child’s parents; and ·the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.Additional considerations Section 60CC(3) of the Act sets out additional considerations in determining what is in the child’s best interests. To assist analysis, those considerations can conveniently be grouped under the following headings:(a)Issues relating to the children – their views, level of maturity, culture and relationships:·Sub-section (3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;·Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child;·Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant; and·Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.(b)Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility:·Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child; ·Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;·Sub-section (3)(f) – the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs; and·Sub-section (3)(i) – the attitude towards the child and parental responsibilities, of each of the child’s parents.(c)Issues of family violence:·Sub-section (3)(j) – any family violence involving a child or a member of the child’s family; and·Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and, if applicable, taking into account a number of stated matters.(d)Effect of change:·Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.(e)Practical difficulty of implementation:·Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.(f)Avoiding further proceedings:·Sub-section (3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child. (g)Other relevant matters:·Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.