Filmer and Roth

[2011] FamCA 362

FAMILY COURT OF AUSTRALIA

FILMER & ROTH [2011] FamCA 362

FAMILY LAW – CHILD – best interests – overseas travel by each parent with the child – weight to be given to Orders and Notation made 11 October 2010
FAMILY LAW – COSTS – conduct of the parties – whether proceedings could have been avoided – weight to be given to certain travel costs to be met by the father.

Family Law Act 1975 (Cth):  ss 60CC(3), 117(2) and 117(2A)

APPLICANT: Mr Filmer

RESPONDENT: Ms Roth

FILE NUMBER: SYC 4896 of 2008

DATE DELIVERED: 5 May 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rose J

HEARING DATE: 4 May 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Uther Webster & Evans

SOLICITOR FOR THE RESPONDENT: Hamish Cumming Family Lawyers

Orders

1. That an Order is made in terms of paragraph 2 of the Minute of Orders sought by the mother filed in Court on 4 May 2011 and varied to read as follows:

   2.The father deliver the child to the mother in City A, State B, Country C on 1 July 2011 together with the child’s ticket City A to Sydney such ticket to be changed at the cost of the father to enable travel on 31 July 2011 or such other date as advised by the mother within 14 days.

2. That an Order is made in terms of paragraphs 3 and 4 of the Minute of Orders sought by the mother filed in Court on 4 May 2011:

   3.That Order 8 of 11 October 2010 be varied so that the mother is to give the father notice by 31 March each year whether she is to travel with the child in the June/August school holidays.  If the mother is not to travel the father may then within 14 days give the mother notice that he intends to travel in the June/August school holidays.

   4.That notwithstanding the Orders of 11 October 2010 the child shall not travel outside of Australia during a school term without the written consent of both parties.

3. That an Order is made in terms of paragraph 5 of the Minute of Orders sought by the mother filed in Court on 4 May 2011 with the addition of the word “Principal” before the words “the child’s school”:

   5.In deciding whether to consent pursuant to Order 4 the parties shall consult with the Principal of the child’s school.

4. That the court requests the Australian Federal Police remove the name D born … 2007 from the Airport Watch List at all points of international arrivals and departures in Australia for the period 9 June 2011 to 31 July 2011.

5. That the father pay the mother’s costs of and incidental to these proceedings in the sum of $1,000.00 and that such payment be made on or before 5 September 2011.

IT IS NOTED that publication of this judgment under the pseudonym Filmer & Roth has been approved by the Chief Jsutice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC4896 of 2008

Mr Filmer

Applicant

And

Ms Roth

Respondent

REASONS FOR JUDGMENT

Introduction

1. In these proceedings each of the parties have sought orders to enable them to take their child to F Continent during the forthcoming June/July school holiday period, albeit for different periods of time.

2. The father’s application is that he be permitted to take the child D who is four years of age having been born in 2007 (“the child”) with him to Country E for the period 9 June 2011 to 3 July 2011.

3. The purpose of the travel was to enable the child, together with the father and his new family unit including children, to all travel together and to further their understanding and enjoyment of their Country E background as well as spending periods of time with relatives and friends in Country E and then to proceed to enjoy a holiday resort before returning to Australia.

4. The mother’s position is that she opposed such travel taking place, but in the alternative, sought an order which limits the period of time of the travel arranged by the father so that the child might spend time with her in Country E for similar purposes to that referred to by the father but involving her family.  The exception being that the mother’s holiday plans would not include visiting a holiday resort.

5. On 7 September 2010 parenting orders were made by consent.  Those parenting orders included an order for equal shared parental responsibility which also set out various holiday periods that the child might spend with one party or the other but which did not include the June/July 2011 holiday period.  That issue was left for determination by the trial Judge and he did so on 11 October 2010 when Orders were made and Judgment given.

6. The orders made on 11 October 2010 (which I shall refer to as “the October 2010 orders”) were detailed in terms of the holiday periods that might be spent by the child with each of the parties and provided for particular notice to be given by the father or the mother of an intention to take the child to F Continent as provided for in the October 2010 orders.  The October 2010 orders also had notations which although a notation of itself is not an order, nonetheless is a means of recording the intentions of the parties so as to ensure, so far as it is possible to do so, that any further issues between the parties can be avoided.  That notation recorded the indication given by each of the parties for travel with the child during school holiday periods in 2011.  In that regard, the court noted that:

   The mother has indicated that she will probably travel with the child to [Country E] in the June to August school holiday period in most years.  She may elect in about every third year to travel at Christmas time rather than in the June to August school holiday period.

7. In addition, the notation recorded that:

   The father has indicated that when he travels to [Country E] with the child, it will probably be in the September to October school holidays.  He anticipates travelling about every third year with his first trip planned for 2011.

Issues

1. There is no issue that the father gave written notice to the mother on 15 February 2011 of his proposal for the child to travel with him to Country E for the period to which I have referred.

2. On 18 February 2011 an e-ticket itinerary was issued by the carrier which gave the expected detail so far as flights and dates of travel were concerned.

3. It is also common ground that the father had not waited for a response from the mother prior to paying for the travel for the child as well as others in his family including himself, nor had he had any meeting or communication with the principal of the school attended by the child or her teacher as to whether or not it was in the child’s best interests, although four years of age, to miss two and a half weeks of school to accommodate his proposed travel.

4. So far as the latter is concerned, the father subsequently did have a meeting or communication with the relevant school staff member, but that appears to have occurred only after the mother had pointed out to him that it would have been desirable for such a meeting to take place.  That meeting then occurred by unilateral arrangements by the father, notwithstanding that the parties have equal shared parental responsibility with the education of the child being amongst the issues that such order encompasses.

5. The father, through his own email and on the evidence before me including correspondence by his solicitor, emphasised compliance by him with October 2010 orders and the period of time that he had provided in the form of a written notice to the mother.

6. In my view, that correspondence and the father’s evidence is disingenuous.

7. It must be remembered that the father is not an unrepresented litigant.  His legal representatives are the same as those who represented him in the proceedings last year to which I have referred.  The notation to the October 2010 orders is clearly relevant.  That notation records the intentions for this year so far as the June to August school holiday period is concerned.

8. It would have been reasonable, in my view, for the father to have referred to that and asked the mother whether she had any objection.  It is not a sufficient answer to that issue by pointing out the written notice that he gave, given that within three days of that notice he had purchased the travel for himself and the child as well as for others.  In effect, the father provided the mother with a fait accompli.

9. It was also remiss of the father, no matter how well intentioned he may have been in terms of prospective enjoyment of travel to F Continent, not to have had a meeting with the relevant staff member at the school to discuss whether or not the proposal was in the child’s best interests prior to purchasing the relevant travel documents.  In addition, it should have been obvious to him that such a meeting should include, if possible, the mother who after all was the primary carer of the child.  For reasons best known to the father, that did not occur.

10. During the course of submissions, I was informed by the solicitor for the father that he had paid for the tickets and other arrangements to enable the child to attend a holiday resort with himself and others in his group, including other children.  Again, this was yet another fait accompli that he was presenting so as to maximise the pressure on the mother to agree to his proposals for travel to F Continent, notwithstanding the notation to the October 2010 orders and the unreasonable short notice that he provided to the mother of his proposal prior to purchasing the travel documents.

11. The evidence of the mother is that she has had a long-standing proposal to visit Country E with the child for the purpose to which I have referred, consistent with the notation made to the October 2010 orders.

12. To her credit, the mother in her correspondence acknowledges the potential disappointment that might occur in the event of the father’s travel with the child to Country E being disrupted as well as of course the financial cost that might be incurred should such travel not be able to proceed.

13. Ultimately, after hearing further submissions from the parties’ legal representatives, the issues were narrowed to consider the period of time to be allowed to the father in terms of F Continent travel with the child, and the place at which care of the child would pass from the father to the mother.

Conclusion

1. I have given the appropriate weight to those submissions, taking into account the proposals that each of the parties have made, the evidence and background previously referred to, which I accept.

2. I have concluded that it is in the child’s best interest to be able to travel with the father to F Continent for the period from 9 June 2011 concluding on 1 July 2011.

3. It is implicit in the evidence before me that the child has an expectation of such travel.  Undoubtedly, it will be very much to her benefit so far as acquaintance with the father’s family and friends in Country E not to mention travelling with her father and the enjoyment of participation in this travel with other members of his current family.

4. At the same time, similar benefits are likely to pass to the child by being able to accompany the mother to Country E.  There are a number of matters that she relies upon as making it highly desirable that she travel to Country E with the child, including health and age issues of one or more relatives.

5. Given the payments that have already been made for the holiday resort travel and further expectations that the child might have with respect to this aspect of the travel arrangements made by the father and a consequent disappointment for the child and perhaps some adverse effect on the child’s relationship with the mother should the holiday resort proposal not be able to proceed, I have concluded that it is in the child’s best interests, on this particular occasion, for that aspect of the travel to take place.

6. The mother will be in Country E in City G at the particular date by which the holiday resort excursion will either have been completed or near completion.  The father and the child will be in City A.  The mother will have to travel from City G to City A in order to meet and collect the child so that the child can accompany her to Country E for the purposes of the holiday period which has been organised.

7. Given that, regrettably, the father has for his own reasons presented the fait accompli, previously referred to, in circumstances which no matter how well intentioned were unreasonable, I have concluded that it is proper that he pay for the return airfare of the mother from City G to City A in order to meet the child as well as the child’s travel accompanying the mother from City A to City G and return so that she ultimately can be in the care of the mother for the return journey from City A to Sydney.

8. I raised with the legal representatives for the parties as to whether or not it was desirable that an appropriate order be made to ensure that the airport watch list is not enforced for the period of travel that the parties envisage with the child in the forthcoming June/July holiday period.

9. The orders to which I have referred, namely those made on 7 September 2010 and the October 2010 orders, do not include an airport watch list order.  I pointed out to the parties’ legal representatives that even in those circumstances experience has demonstrated that at times parenting orders are nonetheless included in the relevant computer database.  Unless an appropriate order is made to ensure that the airport watch list does not apply for a relevant period, there can be difficulties raised in terms of a parent leaving with a child during that period.

10. It was agreed that there is no disadvantage to a suitable order being made and implicitly it was desirable to do so to avoid the potential difficulty to which I have referred.  In due course I will make such an order.

11. Minutes of further orders sought by each of the parties were filed in Court yesterday.  I have considered the terms of those orders and have concluded that part of the orders sought by the mother will be made with appropriate amendments.  Before proceeding to make those orders, I consider it desirable to stress that the parties should approach further communication and proposals with greater sensitivity than has occurred in the recent past, particularly the father.

12. It is clear to me from the evidence that the parties had previously developed a reasonable line of communication between them, subsequent to the October 2010 orders.  They had moved ahead from difficulties which the father’s solicitor informed me of as is apparent from the extensive recent parenting orders made by consent on 7 September 2010.

13. Rather than dogmatically proceeding with arrangements affecting not only the child but the other parent, it would be more conducive to constructive, sensitive and flexible arrangements in the future if there was more open communication between them, allowing sufficient time for proposals to be considered rather than simply proceeding within a few days to cement one proposal or the other.  Had that occurred in these proceedings, then the hearing before me may well have been avoided not to mention the legal costs associated with it.  Such money no doubt could have been better spent for the benefit of the child.

Mother’s oral application for costs

1. An oral application for costs is made on behalf of the mother.  In this jurisdiction the general principle is that each party bears his or her own costs.  The general principle is subject to a wide discretion to make an order for costs in the event that a  circumstance has been established that may make such an order proper and having regard to relevant matters pursuant to s 117(2(A) of the Act.

2. It is contended on behalf of the mother that the circumstance which may justify an order is that the father presented a fait accompli in terms of the travel to be undertaken by him with the child and that was underpinned by an unreasonable attitude having regard to not only the October 2010 orders but the notation to it which recorded each party’s proposals for holiday time to be spent with the child this year including overseas travel.

3. I have made findings in relation to the history of the matter and the circumstances in which the proposed travel by the child with the father took place including the notice given and the acquisition of the travel documents within a very short time after the notice was given.

4. In my view, the actions by the father no matter how well intended did create a fait accompli that was done without any sensitivity or flexibility whatsoever, as is demonstrated by the purchase of travel documents within three days at a maximum from the time when he provided his notice and further accentuated by the lack of any reference at all to the notations to the October 2010 orders.  Instead, the father exclusively concentrated upon the orders that provided for notice to be given for overseas travel.

Relevant section 117(2A) matters

1. With regard to relevant matters pursuant to section 117(2)(A), the only matters raised are as follows.

2. In terms of the wife, it is contended that the father’s conduct in relation to the proceedings have been such that were it not for the approach that he has taken to the mid-year overseas travel, these proceedings would have been unnecessary.

3. On behalf of the father, it is contended that there had been a history of difficulties between the parties so far as parenting matters were concerned.  The mother had provided a lack of consent and that negotiations had proved fruitless.

4. It is further contended that there are some saving of costs to the mother had she found herself in the position of having to pay the return journey costs for the child from City A to Sydney in the event that she was travelling to Country E with the child without there being an intervening arrangement of the father also travelling to Country E in a similar period of time.

Conclusion

1. I have concluded that an order for costs will be made in favour of the mother, but representing half of the amount sought.

2. There was no issue in submissions as to the quantum of the order.

3. The amount sought is $2.000.00 on a party/party basis in favour of the wife.

4. There obviously is a considerable saving to the mother by not having to pay for the travel for the child from City A to Sydney.

5. I have not been informed, nor is there any evidence as to the cost associated with that particular part of the overseas travel.  Consequently, I am left in the position of having to make an arbitrary assessment.

6. The costs thereby avoided is an important matter to take into account.  I take that matter into account on the basis that the costs incurred by the mother for these proceedings must be weighed against that particular factor.

7. I have made findings as to the husband’s approach to the travel which in essence precipitated these proceedings, which could have been avoided with a more sensitive and flexible approach rather than one which simply provided the mother with a fait accompli.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose delivered on 5 May 2011.

Associate: 

Date:  19 May 2011