Feranti and Connor (No. 4)

[2008] FamCA 1229

FAMILY COURT OF AUSTRALIA

FERANTI & CONNOR (NO. 4) [2008] FamCA 1229

FAMILY LAW – CHILDREN – Application by mother to take child overseas

APPLICANT: Mr Feranti

RESPONDENT: Ms Connor

FILE NUMBER: MLF 10368 of 1994

DATE DELIVERED: 9 September 2008

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

JUDGMENT OF: Strickland J

HEARING DATE: 9 September 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Mr Falconer

INDEPENDENT CHILDREN'S LAWYER: Ms Aitchison

Orders

1. That the child … born … March 1995 be permitted to leave the Commonwealth of Australia for the purposes of travelling overseas with the mother leaving Australia on 17 September 2008 and subject to there being no delays with airline flights returning to Australia on 19 November 2008.

2. That a Registrar of the Family Court of Australia be and is hereby authorised to sign a passport application for the said child in lieu of the respondent father and to sign all such other documents as may be necessary for a passport to be issued to the child by the relevant authority.

3. That within seven [7] days of the child returning to Australia the child’s passport be lodged with the Family Court of Australia.

4. Upon the lodgement with the Court of the said child’s passport that passport only be released upon the written consent of both parties or by order of the Court.

5. Until further order that the mother be restrained from denigrating the father in the presence of the child and from permitting any other person including Mr G from denigrating the father in the presence of the child.

6. That prior to leaving Australia with the child on 17 September 2008 the mother enter into a recognisance with the conditions of that recognisance to be that the mother return the child to the Commonwealth of Australia by no later than 24 November 2008 and in the event that the mother does not do so the mother pay into the Court the sum of FORTY THOUSAND DOLLARS [$40,000.00] to be held by the Court pending further order.

7. That the order made by Justice Brown on 2 February 2004 insofar as that order provides for the child to spend time with the father and to communicate with him by telephone be suspended during the period of the adjournment upon condition that:

   a.   the child telephone the father once per week during the time that she is outside of the Commonwealth of Australia;

   b.   the child spend time with the father from 6:15pm on 12 September 2008 until 6:45pm on 14 September 2008 upon the basis that the father books and initially pays for the child to travel by plane from M in South Australia to Melbourne and return for the purpose of the time to be spent, with the mother to reimburse the father the cost of those airfares within seven [7] days of her return to the Commonwealth of Australia;

   c.   the child spend time with the father for one extra week during the 2008/2009 Christmas school holidays with the dates and times to be agreed between the parties.

8. That further consideration of this matter be adjourned to 9:00am on 1 December 2008.

9. That leave is granted to all parties and their legal representatives and the Independent Children’s Lawyer to attend that hearing by way of telephone.

10. That the hearing on 1 December 2008 be vacated in the event that the child returns to Australia by no later than 24 November 2008.

11. That the Application in a Case filed by the mother on 25 August 2008 and the Response filed by the father on 9 September 2008 be dismissed and removed from the active pending cases list.

12. That pursuant to Section 62B and Section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact Sheet.

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

FAMILY COURT OF AUSTRALIA AT DARWIN

FILE NUMBER: MLF 10368 of 1994

MR FERANTI

Applicant

And

MS CONNOR

Respondent

EX TEMPORE REASONS

1. This is a matter where the mother filed an application on 25 August 2008 seeking various orders to ensure that the child has a passport to enable her to travel overseas with the mother and the mother's partner from 17 September 2008 until 19 November 2008.

2. I will not dwell on this but I will mention that the application has been brought on the basis of, as the mother says, attempts to have the father respond positively to signing the necessary documents.  The father says in his responding affidavit that he did not receive those requests in sufficient time for him to respond properly.  But regardless of that I am not going to make an order simply that the relevant documents now be sent to the father for him to sign.  This matter needs more urgent attention than that, given how this application has progressed. 

3. The father has prepared and forwarded to the Court and to the other parties a response together with a supporting affidavit.  They have not been formally filed, and that was at my direction to save time in the hearing of this matter, but everyone has the father’s documents before them, and in that response the father seeks orders that the child be permitted to travel overseas during a specified period of time only, and that that not overlap with any currently defined school holiday time that the father is entitled to have with the child.  They are the two initial orders sought and then summarising from there and highlighting the more important orders, the father seeks a bond or security to guarantee the return of the child back to Australia and he seeks the delivery up or the surrender of the child's passport to the Court at that time.

4. The father also seeks that the matter be at least mentioned at the conclusion of the trip so that appropriate action can be taken if the child has not returned and that there be an injunction restraining the mother and her partner from denigrating the father in the presence of the child.

5. That is a summary of the formal orders sought by the mother and the father.  There have been various changes in their respective positions and refinement of the orders sought over time and I will come to that in a moment.

6. The factual scenario confronting this Court is that the mother has booked and paid for a trip from 17 September to 19 November.  It is a trip which provides for her and her partner and the child to travel to various parts of the world during that time. 

7. A query has been raised as to why the application for the consent to the issue of a passport has not been taken before now.  The mother initially explains that by saying that she was not aware that she had to obtain the father's consent, and the further delay in seeking that consent has been explained on the basis that it was anticipated or hoped that the family consultant would be able to address that issue directly with the father during his interviews.  However, that did not happen.  The family consultant has only interviewed the mother and the child and did not interview the father.  There is a dispute as to why that was the case, the family consultant saying that he made attempts to contact the father but the father not accepting of that.  Be that as it may there was no interview between the father and family consultant, and thus that issue was not able to be addressed directly with him.

8. In these circumstances, the mother brought this application on 25 August 2008.

9. As a result of submissions that have been made to me it seems that the mother, although she initially sought simply suspension of the current order which provides for the father to spend time with the child during school holiday periods and also for the child to have telephone communication with the father, she no longer seeks only that.  She is prepared to agree to make-up time and also, as I understand it, it has not been confirmed today, but no-one has spoken against it, she is prepared to facilitate the child speaking to the father during the course of the overseas trip.  The mother is now amenable to make-up time, even as early as this coming weekend with the child flying to Melbourne for that purpose, and she has no objection to the father having an additional week in the forthcoming Christmas school holidays.

10. In terms of the injunction sought by the father by way of non-denigration, the mother, without admitting that there is a need for such an injunction, is prepared to agree to that being put in place.

11. In terms of further orders the father seeks, he seeks that either there be an automatic recovery order issued by the Court in the event the child is not returned, if she is able to go, or at the very least that the matter be listed for mention after the due return date. Mr Falconer has indicated that his client would have no objection to the matter being listed for mention, and as a result of further discussions with the father, my view is that that is the more effective order. Thus there is no issue about that aspect of the matter.

12. In terms of the father seeking that the passport be surrendered to the Court upon the return of the child from overseas, the submission by Mr Falconer was that the mother would reluctantly agree to that.  I do not need to dwell on why it was expressed with reluctance, but it seems to me that that is an appropriate order to make in the circumstances.

13. In terms of telephone contact whilst the child is overseas, the father sought that either he have that contact once a week or that in the alternative a contact number be provided.  Again, as I recall, Mr Falconer on behalf of the mother has indicated that the mother is quite prepared to facilitate the child telephoning her father once per week.

14. Continuing to discuss in general terms the orders sought, the changes that have been made, the concessions that have been made, and the refinements sought, the father's primary position is still that although he has no objection to the child travelling overseas it should be for a specified period of time, that that should not overlap with the September school holidays and there should be a bond. 

15. Now the mother has no objection to permission being given to travel during a specified period of time.  The father though has pointed out on two occasions, that that was not her application, but as I pointed out in response, that is how I have treated it.  Thus I do not consider that to be an issue.

16. That said, the issues that I need to decide are whether the child is permitted to go at the time proposed despite that overlapping with a school holiday period, or whether there should be some limit placed on that, and secondly whether there should be a bond or some security provided to guarantee the return of the child.

17. In terms of the Independent Children's Lawyer's position, she supports the child going on this trip.  She has made sensible and logical submissions to me about that.  Firstly she says that this trip will give the child a singular opportunity to spend time with her mother and enjoy her mother's company at a time when her mother is still well enough to do that, given that I accept the evidence before me that the mother has a terminal condition and that her life expectancy is approximately one to two years.  Secondly, she says that this trip might very well indirectly benefit the relationship between the father and the child because, on her instructions from the child, the child has had some reluctance in spending time with the father.  The father does not accept that but if this trip is limited in any way, the Independent Children’s Lawyer has no doubt that the child would see that as the father being the cause of that and that would have a negative impact on her relationship with the father.

18. Ms Atchison has not made any submission about the make-up time suggested.  She has made the point though that that should always be subject to the child's wishes, and in reality, that is going to be the case anyway, given the age of the child.

19. Now, returning to the issues at hand.  This is a relatively straightforward application for a mother to take a child overseas.  The problem is that the period of time overlaps with time that the child is to spend with the father pursuant to the existing order.  The father has gone to great pains in his responding affidavit and in his submissions to refer to the relevant history of this matter and the background to his current position, but this is not a matter where I need to make any findings, even if I could in a hearing like this, about whether the child wants to spend time with him or not, what happened in 2007, what happened in 2006, what happened in 2005, whether the mother is manipulating the child, or whether the Independent Children’s Lawyer is doing her job adequately or not.  This is a matter which is being heard on an interim basis on affidavit with submissions being made by each party.  I am not in a position to make any findings about any disputed facts.  Thus I view this as a relatively straightforward matter with the primary issue being whether the father's time should be maintained or whether if not, it should be the subject of make-up time.

20. The plain fact of the matter is that the child has not spent any time with the father since approximately December 2007.  I am told and I have read the report of the family consultant that that stems from an incident that occurred in December 2007.  The father has attempted to make submissions about that incident and the Independent Children’s Lawyer responded.  But to repeat, I can make no finding about that incident.  What I am faced with is the fact that from that time the child has not seen the father.  The mother says that is because the child does not want to spend time with the father.  The father says that it is because of manipulation, coaching - call it what you will - of the child by the mother.  The Independent Children’s Lawyer steers a middle course and says that she accepts what the child says to her and that is that the child has a reluctance to spend time with the father. 

21. Thus the immediate history of this matter is there has not been any time spent, and what I need to balance is whether the fact of there being the opportunity for the child to spend time with the father in the September school holidays should impact upon this trip which has been organised and which would overlap with that. 

22. For my part, there are significant advantages to this child in undertaking this trip as planned, and I agree entirely with the Independent Children’s Lawyer that to not allow it could very well have a negative impact upon the relationship between the child and the father.  I am also comforted in that approach by the fact that I am able to make an order about make-up time and by the fact that the mother is agreeable to me making that order in the terms that the father seeks in the event that I make the order that I have indicated I will.

23. The mother still says, through her counsel, that she is not in a position to make the child attend any make-up time.  However, if an order is made by this Court, as it will be, then the expectations are that that order will be obeyed.  This child though appears to have a strong will and a mind of her own.  She is 14 years of age.  She will of course have an input into what time she spends with her father and whether she goes or not but this matter cannot be determined by a 14 year-old child.  If the parents are in agreement that there should be time spent between child and father and an order of this Court is made then, as I say, the expectation is that that order will be complied with.

24. In terms of the imposition of a bond, I explained to the father on the last occasion what that would mean, namely, the mother would in effect promise to this Court that she would return the child and if she did not, there would be a monetary penalty.  I must say that I am not sure what the mother's position about that is.  Mr Falconer's submissions to me were a little unclear on the last occasion but at the end of the day I understood Mr Falconer to be saying to me that there really could be no impediment to a bond being put in place on that basis, but that did not seem to be Mr Falconer's submission today.  Mr Falconer seemed to be saying today that there is no need for a bond, but the mother would still enter into one if required.  The Independent Children’s Lawyer has not made any submission about this, but the father has consistently expressed suspicions about this trip.  He has raised various matters that he says indicate to him that there is a lack of bona fides here.

25. In terms of whether I allow this child to go overseas for the period that is sought, the authorities are quite clear in saying that one highly relevant consideration is the bona fides of the application.  I consider that I have sufficient information before me though to accept that the application is bona fide and that there is no hidden agenda or sinister motive in relation to the overseas trip.

26. However, given the way this matter has developed, the history of it, the suspicions that the father has raised and given that the mother is prepared to enter into a bond to return the child then I consider that should happen. 

27. In relation to the terms of the bond, it will be that the mother will return the child to Australia but if she doesn’t then there needs to be a monetary penalty.

I certify that the preceding 27 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 9 September 2008.

Associate