Foris and Samaras
[2018] FCCA 655
•23 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FORIS & SAMARAS | [2018] FCCA 655 |
| Catchwords: FAMILY LAW – Parenting – final hearing – discrete issue – mother seeking to travel with the children to (country omitted) for a six month period. |
| Legislation: Family Law Act 1975, ss.60CA, 60CC |
| Cases cited: Kuebler and Kuebler (1978) FLC 90-434 |
| Applicant: | MR FORIS |
| Respondent: | MS SAMARAS |
| File Number: | SYC 827 of 2017 |
| Judgment of: | Judge Monahan |
| Hearing date: | 29 January 2018 |
| Date of Last Submission: | 29 January 2018 |
| Delivered at: | Sydney |
| Delivered on: | 23 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Fermanis |
| Solicitors for the Applicant: | Frazi Lawyers | |
| Solicitors for the Respondent: | Ms Munk of Matthews Folbigg | |
ORDERS
THE COURT ORDERS THAT:
The mother advise the father in writing by no later than 30 June 2018 as to whether she intends to travel with the children to (country omitted) for the 2018/2019 long summer school holidays (“the (country omitted) Travel Period”).
In the event that the mother does advise the father of such intention pursuant to paragraph 1 herein:
(a)Paragraph 5.3 of the Orders dated 1 September 2017 and paragraph 2(c) of the Orders dated 29 January 2018 be suspended for the (country omitted) Travel Period.
(b)The children X born (omitted) 2008 and Y born on (omitted) 2010 (“the children”) spend time with the mother from the first Saturday following the conclusion of Term 4, 2018 until the commencement of Term 1, 2019 AND the children be permitted to travel outside of Australia to (country omitted) with the mother during that period.
All extant applications be otherwise dismissed.
AND THE COURT NOTES THAT:
A.These Orders were made following a discrete issues final hearing on 29 January 2018.
B.In the event that the mother elects not to travel with the children in accordance with these orders, the final orders remain in full force and effect.
C.These orders should be read together with the Orders made on 1 September 2017 and 29 January 2018.
D.Pursuant to ss.65DA(2) and 62B 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 Annexure A and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Foris & Samaras is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 827 of 2017
| MR FORIS |
Applicant
And
| MS SAMARAS |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings between MR FORIS (“the father”), and MS SAMARAS (“the mother”).
The relevant children of their marriage are X born (omitted) 2008 (“X”) and Y born on (omitted) 2010 (“Y”) (collectively, “the children”).
This final decision only concerns a discrete issue relevant to international travel, and more particularly, whether the children should be permitted to travel with the mother to reside temporarily in (country omitted) for an approximate six month period from (omitted) 2018. The father opposes the extended trip to (country omitted), or the temporary relocation to (country omitted), but proposes in lieu that the children spend time with the mother in (country omitted) from (omitted) 2018 until (omitted) 2019.
Details of the precise orders proposed by each party are extracted later in these reasons.
Both parties were legally represented at the final hearing of the discrete issue heard on 29 January 2018. The father was represented by Mr Fermanis of counsel, and the mother was represented by her solicitor, Ms Munk.
Unless otherwise stated, any statutory references I make in these reasons are to the Family Law Act 1975 (“the Act”).
Background
Relationship history
The father was born on (omitted) 1972 and is currently 45 years of age. The mother was born on (omitted) 1977 and is currently 41 years of age.
The parties commenced cohabitation upon their marriage on (omitted) 2004.
There are two children of the relationship; X, born (omitted) 2008, currently aged 10, and Y, born (omitted) 2010, who is currently aged seven.
The parties separated on a final basis in October 2011 and a divorce order was made on 17 June 2014.
The father is currently in a relationship with Ms A, who resides in Melbourne. The mother is not currently in a relationship.
Procedural history
The father filed his Initiating Application on 10 February 2017. The mother filed her Response on 16 March 2017.
The matter first came before me in my duty list on 10 April 2017. On that date I made an order, inter alia, for the parties to attend a Child Dispute Conference on 9 August 2017.
On 1 September 2017, the parties were able to settle several aspects of their parenting dispute and final orders to that effect were made on that date. The matter was otherwise adjourned to 29 January 2018 for a discrete issues final hearing on the mother’s proposed travel with the children to (country omitted) for a six month period. Interim orders were also made on that occasion in relation to the children’s time with the father during the Christmas period.
As stated, the discrete issues final hearing proceeded before me on 29 January 2018.
Agreed Outcomes
As stated, when the matter was last before me on 1 September 2017, the parties, to their credit, were able to resolve the majority of their parenting dispute on a final basis, save for three discrete issues. The final orders agreed to on that occasion were as follows.
1. The Applicant (“the father”) and the Respondent (“the mother”) have equal shared parental responsibility for the children, X born (omitted) 2008 and Y born (omitted) 2010 (collectively referred to as "the children").
2. The children live with the mother.
3. The mother shall have responsibility for making decisions for the day-to-day care welfare and development relating to the children when they are living with her and the father shall have responsibility for making decisions for the day-to-day care, welfare and development relating to the children whilst they are spending time with him.
4. The children shall spend time with the father each week as follows:
4.1 From Thursday afternoon until 4.00pm Saturday when the father shall collect the children from their respective schools or collect the children from 5.30pm from the mother’s residence outside of the school terms and return them at the conclusion of this period to their mother’s residence;
4.2 Once each calendar month the period provided for in Order 4.1 shall extend until 4.00 pm Sunday (“The Sunday”) as agreed between the parties and failing agreement, on the third weekend of each calendar month, subject to the following:
a. The Sunday cannot be Mother’s Day;
b. during September, The Sunday be Father’s Day; and
c. in even numbered years, The Sunday cannot be the Greek Easter Sunday.
4.3 At such other times as agreed between the parties in writing and such writing shall be limited to emails and letters.
5. The children spend time with the mother and the father, in which paragraph 4 herein is suspended, as follows:
5.1 During the June/July school holidays of each even numbered years with the father and each odd numbered years with the mother.
5.2 During the September/October school holidays, the first week with the mother and the second week with the father.
5.3 Subject to paragraph 19 herein and during each NSW gazetted long summer school holidays the children spend time in accordance with paragraph 4 herein and paragraph 4 be suspended if the mother chooses to travel out of the Commonwealth of Australia with the children for a period of two to three weeks during the NSW gazetted long summer school holidays AND paragraph 9 herein is complied with.
5.4 At such other times as agreed between the parties in writing and such writing shall be limited to emails and letters.
6. For the purposes of facilitating paragraphs 4 and 5 herein the father shall collect the children from the mother’s home or school as the case may be at the commencement of time the children are to spend time with their father and return the children at the conclusion of such period to the mother’s residence or school if applicable.
7. For the purpose of these Orders, school holidays shall be the holiday dates published by the New South Wales Department of Education and Training for the relevant period in each year.
8. Each party shall notify the other, as soon as practicable and/or possible of any serious injury or illness suffered by the children whilst with that party.
9. Each of the parties shall be permitted to take the children out of Australia or interstate for holidays and for other short periods of time provided:
9.1 So far as practical, the occasion on which each party takes the children out of Australia or interstate are to coincide with school holidays and whilst the children are either living with their mother or spending time with their father in accordance with the orders herein or as otherwise agreed between the parties in writing via email.
9.2 The mother and father shall each give each other as much notification as possible of their intention to take either or both of the children out of Australia for holidays and in any event will give each other not less than 30 days’ written notice;
9.3 The mother and father shall each furnish the other with an accurate itinerary to include departure date and return date, the country or countries that the children will be travelling to, the approximate dates in which the children will arrive and depart each country and a telephone number and address at which the children and the parent travelling with the children can be contacted in each country; and
9.4 Prior to each party departing with the children overseas the parties shall authorise and facilitate such travel by executing any necessary document or application necessary to obtain passports for the each of the children and provide such passports to the party travelling with the children in a timely manner otherwise such passports shall be retained by the mother upon the children returning from overseas.
10. Each party shall notify the other, not less than seven (7) days before any change to their address and not more than 24 hours after any change to their landline and/or mobile telephone numbers and/or their email address.
11. The mother and father shall each provide the other the names, addresses and telephone numbers of all medical professionals who are treating or may treat the children and authorise each medical practitioners in writing to provide to the other party copies of any test results, letters of referrals, reports, and provide each other copies of letters received from a medical practitioners relating to any of the children and authorise such medical practitioners to discuss any aspect of the children's health with the other party.
12. Each party shall use their best endeavours that the children attends all school events, sporting and extra-curricular activities in which the children are enrolled and at which attendance is required during the period of time the children lives or spends time with each respective party.
13. Each party shall keep the other informed via email of all sporting, religious, cultural and educational activities, and other child related matters in which the children are involved. SMS communications shall be restricted to drop off and pick up arrangements in accordance with these Orders, and medical emergencies.
14. Alternate contact for the father shall be MS P (or such other person nominated by the father with seven (7) days’ written notice) in respect of medical emergencies regarding either of the children who shall be contactable via mobile phone. The alternate person for the mother shall be MS C (or such other person nominated by the mother with seven (7) days’ written notice) who shall be contactable via mobile phone.
15. The parties shall be restrained from changing the children’s current schools without the written consent of the other party and the parties shall use their best endeavours to agree on any future schools the children are to attend.
16. Unless otherwise agreed, whilst the children are not residing with or spending time with either party as provided herein then that party shall be at liberty to communicate with the children by telephone, or by other electronic means including but not limited via facetime video conference or Skype. On each evening whilst the children are with the father, the father will facilitate phone communication between the children and the mother between 6:00pm and 8:30pm. On each evening whilst the children are with the mother, the mother will facilitate phone communication between the children and the father between 6:00pm and 8:30pm. There will be no phone communications outside of these times in order to preserve the routine of the children unless either child expresses a wish to speak to their parent they are not residing or spending time with on any particular day outside the specified times herein.
17. The parties shall be entitled to contact the children’s schools and make all necessary arrangements with respect to receiving a copy of each of the children’s school reports, school photographs and other notices made available to parents of children attending that school and be permitted to liaise directly with the children's schools and/or teachers and be permitted to attend all school events, functions and activities of whatsoever nature or kind including sporting events that the children are involved in and the parties shall forthwith do all acts and things necessary to authorise the school in writing to facilitate this order.
18. Each party be and hereby are restrained from, or allowing any third party from, denigrating each other or members of the other party’s family including partners in the presence or hearing of the children and from discussing these proceedings with the children.
The three discrete areas of disagreement are the following:
·Firstly, the proposed extended trip, or the proposed short term relocation to (country omitted) as sought by the mother (and referred to in the introduction to these reasons); and
·Secondly, a dispute as the spend time with arrangements for the Christmas/Boxing Day period; and,
·Thirdly, the spend time with arrangements for the Greek Easter period.
Pleasingly, the parties were able to compromise and resolve the spend time with arrangements for both festive seasons with the following additional final orders made on 29 January 2018:
1. The children X born (omitted) 2008 and Y born (omitted) 2010 (“the children”) spend time with the mother as follows:
a) commencing in 2018 and each alternate year thereafter during Greek Easter from the conclusion of school or 3.30pm on Greek Orthodox Good Friday until 3.30pm on Greek Orthodox Sunday;
b) on each even numbered year from 10am Christmas Eve until 10 am Christmas Day and from 10.00am on Boxing Day until 10.00am New Year’s Day; and
c) on each odd numbered year from 2:00pm on Christmas Day until 2:00pm on New Year’s Eve.
2. The children spend time with the father as follows:
a) commencing in 2019 and each alternate year thereafter during Greek Easter from the conclusion of school or 3.30pm on Greek Orthodox Good Friday until 3.30pm on Greek Orthodox Sunday;
b) on each odd numbered year from 10am Christmas Eve until 10 am Christmas Day and from 10.00am on Boxing Day until 10.00am New Year’s Day; and
c) on each even numbered year from 2:00pm on Christmas Day until 2:00pm on New Year’s Eve.
Agreed and Disagreed Facts
Factually, the parties disagree about very little. Their disagreement relates to whether the benefits of the proposed international travel would be outweighed by the temporary physical loss of the children's ongoing relationship with the father, and the disruption to the children's schooling in Sydney. It was conceded by the mother that she is yet to secure any employment to coincide with her proposed temporary relocation or residence in (country omitted), although she recently made an application for accreditation. There is also evidence that, firstly, the children's current schools are aware of the proposed trip and have approved the children being absent, and, secondly, inquiries had been made by the mother to enrol the children in a school located in (country omitted), in (country omitted).
The parties disagree about whether X has the academic ability to secure a high school placement in a selective school which is one of the concerns raised by the father in opposition to the proposed temporary relocation.
The mother has also disclosed recently that she has sold her home in Sydney and that settlement of the sale will occur in March this year. Her evidence is that she will either purchase a new home or property prior to the proposed temporary relocation, or agree to be restrained from accessing the bulk of the net funds to be received from the sale of her former property during the period of the proposed trip.
Both parties agree that (country omitted) is a signatory to the relevant Hague Child Abduction Convention.
Proposals
Even though the mother is the Respondent to the substantive application, for obvious reasons I will outline her proposal first as she is the one that seeks to travel with the children, before secondly outlining the father's proposal in opposition.
Mother
In summary, the mother seeks orders that would permit the children to travel with her to (country omitted) to reside in (country omitted), (country omitted) for a six month period from (omitted) 2018 until (omitted) 2019. The precise orders sought by the mother are as follows:
1. That the mother be permitted to travel with the children to reside in (country omitted) for a period of 6 months from mid 2018 to beginning 2019.
2. That the mother shall ensure that during the period that they are away the children shall face time or skype their father each day.
3. That in the event that the father is in (country omitted) during the period that the children are due to be there then the children shall spend time with the father. The father to notify the mother as to his intended dates of travel to (country omitted) at least 30 days beforehand to enable the mother to plan the children‘s availability to spend time with the father.
4. Such further or other Orders the Court deems fit.
I will note at this point that during submissions, the mother proposed an alternate proposal should the Court not favour her primary proposal. Her alternate proposal was that the children be permitted to reside with her in (country omitted) from (omitted) 2018 until the beginning of (omitted) 2019.
Father
While the father does not oppose the children travelling to (country omitted) with the mother, he does oppose the period of travel as proposed by the mother. The father proposes that the children travel to spend time with the mother from late 2018 until (omitted) 2019 (and presumably live with him during the period from (omitted) to late 2018 on the assumption that the mother still travels to (country omitted) during that period). Although the father did not provide a minute of proposed orders, he states the following in paragraph 42 of his affidavit sworn and filed on 20 November 2017:
I am agreeable to the children travelling to (country omitted) with Ms Samaras for a period of six (6) weeks namely from (omitted) 2018 until (omitted) 2019 to give the children an opportunity to experience a White Christmas as well to experience a different culture as proposed by Ms Samaras but without having a detrimental impact on their education and their overall development for the reasons set out in this affidavit.
Issues
As stated, the only issue for the Court to determine is the length and circumstances of the proposed travel by the children with the mother to (country omitted) in (omitted) 2018 and early 2019.
Evidence
Mother
The mother relied on the following documents:
·Her Response filed 16 March 2017;
·Her affidavit sworn and filed 16 March 2017 (paragraphs 9 to 13 and paragraph 46);
·Her affidavit sworn 19 October 2017 and filed 20 October 2017; and
·Her affidavit sworn 12 December 2017 and filed 13 December 2017.
The mother tendered the following documents:
·Bundle of documents relevant to the mother’s (occupation omitted) (Exhibit “RM1”);
·Bundle of documents relevant to the potential (occupation omitted) application in (country omitted) (Exhibit “RM2”);
·Meeting Agendas authored by the mother dated 5 September 2015, 4 May 2016 and 10 August 2016 (Exhibit “RM3”).
Father
The father relied on the following documents:
·His Initiating Application filed 10 February 2017;
·His affidavit sworn 9 February 2017 and filed 10 February 2017; and
·His affidavit sworn and filed 20 November 2017.
The father tendered a bundle of documents with the School Year Calendar of (country omitted) for 2018-2019 and a list of school fees (Exhibit “F1”).
Child Dispute Conference Memorandum
The parties (but not the children) attended a Child Dispute Conference (“CDC”) with family consultant, Ms T, on 9 August 2017. Following the conference, Ms T provided the parties and the Court with a comprehensive memorandum.[1]
[1] The Child Dispute Conference memorandum was marked Exhibit ‘A.’
That memorandum provides as follows:
Issues in dispute
Whether Ms Samaras should be allowed to relocate with X and Y to (country omitted) for up to six months as an educational and cultural experience. Mr Foris said that he opposes this proposal on the grounds that, given the children’s ages (X, aged 9 years and Y, aged 7 years), their relationship with him would be detrimentally affected, the children’s developmental opportunities would be disrupted and X would be precluded from sitting for the selective schools examination. Ms Samaras said that she believes spending time overseas would provide the children with an invaluable cultural experience, opportunity for personal growth, educational enhancement, development of resilience and the opportunity to become “global citizens”.
Risk factors
nil
Co-parenting relationship
To their credit, Ms Samaras and Mr Foris have a history of flexible, negotiable and cooperative co-parenting since their separation nearly six years ago. Until the current Court application, the parents had agreed on informal parenting arrangements, which are detailed in their Application, Response and affidavits.
The parents facilitate daily phone calls between the children and the parent with whom they are not spending time. The parents also said that, on some occasions, they have shared the children’s birthday celebrations together.
The parents communicate by email and report limited verbal communication at changeovers. Ms Samaras said that she believes the children would like to see their parents communicating more in an informal manner at changeovers.
By both parents’ account, the children do not appear to be exposed to parental conflict.
Each parent speaks in positive terms about the other’s parenting capacity and relationship with the children.
Issues for the children
X and Y seem to have an established and strong relationship with Mr Foris. They spend regular and frequent time with him, which is essential for the development and consolidation of attachment relationships. Each parent reports that the children enjoy, and look forward to, spending time with Mr Foris.
The cooperative co-parenting relationship means that the children are not exposed to parental conflict and are, therefore, unlikely to be experiencing split loyalties or the burden of parental conflict.
Although Ms Samaras presented a compelling argument for the benefits of a short term international educational experience, it is acknowledged that the children would undoubtedly miss Mr Foris, as he would miss them. Ms Samaras suggested some strategies for maintaining contact between the children and Mr Foris, such as unlimited Skype or Facetime and the option of Mr Foris travelling to (country omitted) to visit.
X and Y are of an age where they are developmentally more capable of maintaining a robust attachment without having regular and substantial contact, and are also able to more effectively utilise remote contact methods such as Skype and Facetime.
Agreements reached
Equal shared parental responsibility
The children live with Ms Samaras
The children spend time with Mr Foris each Thursday from after school to Saturday 4pm. Ms Samaras said she is favourably open to consider Mr Foris’ proposal of the children spending overnight time with him one Saturday per month, alternate special occasions (including Christmas and Easter) and alternate (country omitted) summer and September school holidays.
Future directions
A judicial decision is required regarding Ms Samaras’ proposal to relocate with X and Y to (country omitted) for up to six months.
Submissions
Each of the parties’ legal representatives presented oral submissions at the final hearing of the discrete issue heard on 29 January 2018. In addition, the mother provided the Court with a comprehensive case outline document.
I do not propose to summarise the relevant submissions made by each of the parties at this point of my reasons, but I will refer to them where relevant during the reasons that follow.
Law and Discussion
All parenting proceedings are governed by the provisions of Part VII of the Act. Parenting orders are defined in section 64B of the Act and deal with issues relevant to this dispute including issues relevant to the time and circumstances that children spend with one of the parents. Parenting orders also deal with the allocation of parental responsibility. Section 60CA of the Act provides as follows:
In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the children as the paramount consideration.
Section 60CA through section 60CC of the Act deals with how the Court determines the best interests of children. This is sometimes referred to as the legislative pathway. The most relevant to this discrete issue would be the primary considerations in section 60CC(2) and the additional considerations in section 60CC(3) where relevant.
Primary considerations: Section 60CC(2)
Section 60CC(2)(a) requires the Court to consider the benefit of the children having a meaningful relationship with both of the children's parents. The Full Court considered this provision in the concept of meaningful relationship in McCall & Clark [2009] FamCAFC 92.
In summary, what the Court is required to do is consider and weigh the available evidence and determine (assuming the Court is satisfied that it is in the children's best interests) how and what orders can be framed in order to ensure that the children have a meaningful relationship with both of their parents and by implication extended family.
That said, the Court must also consider section 60CC(2)(b) of the Act - the need to protect children from physical or psychological harm, and being subjected to or exposed to abuse, neglect or family violence.
The father argues that the length of the proposed travel to (country omitted) is detrimental to the children for a number of reasons.
·Firstly, the proposed length of the trip (i.e. six months) may have a significant impact on the children's relationship with him.
·Secondly, the proposed length may have an impact on the children's schooling and may jeopardise the possibility of X being able to attend a selective school during high school.
·Thirdly, the father argues that there is an inherent risk that the mother may not choose to return to Australia with the children because she has recently agreed to sell her home in Sydney, and has had a relationship with a (nationality omitted) national.
The mother asked the Court to dismiss the father's alleged concerns. She raised a number of reasons.
·Firstly, the children's schools are aware of the proposed trip, and she argues there are clear benefits to the children having an international experience, just as the mother had when she was a child. In this respect, I note some comments in support from the family consultant.
·Secondly, the children would be able to have ongoing communication with the father through the use of electronic communication, or the father may choose to travel to (country omitted) to spend time with the children.
·Thirdly, the mother argues that she is not a flight risk. She asked the Court to note that her family are based in Australia, and she has employment based in Sydney which she can return to and has been granted permission to take leave from.
I note at this point of my reasons that there are no specific provisions in the Family Law Act relevant to international travel, save for subdivision (e) of Division 6 of Part VII – being the obligations under parenting orders relating to taking or sending children from Australia. That said, there are a large number of cases which have considered the issue of international travel. In particular, the Full Court decisions in cases of Kuebler and Kuebler (1978) FLC 90-434 and Line & Line (1996) 21 Fam LR 259; (1997) FLC 92-729.
The case law would suggest that the Court should examine the following questions:
·The length of the proposed stay out of the jurisdiction.
·The bona fides of the travel application.
·The effects on the children of any depravation in spending time with the other non-travelling parent.
·Any threats to the welfare of the children in the circumstances of the proposed environment.
·The degree of satisfaction the Court may have in the travelling parent's promise to return to the jurisdiction.
·Whether a financial security is appropriate.
·Hardship issues.
·Whether the country of proposed travel is a member of the relevant Hague Convention.
I will consider each of these questions in light of the available evidence and submissions made.
Length of the proposed travel
As stated, the length of the proposed travel is approximately six months. That is from (omitted) 2018 until (omitted) 2019.
The bona fides of the application
The mother has provided evidence that she has sought an absence from her employment with the (employer omitted) to facilitate the proposed travel. The mother does not at this stage, have employment in (country omitted) confirmed.
The effect on the children of any depravation of spending time with the father
I previously canvassed this aspect. The father argues that the period of six months is significant given the ages of the children.
Any threats to the welfare of the children in circumstances of the proposed environment
No issue or concerns were raised by either party about travel to (country omitted) generally, or travelling to the city of (country omitted). It is noteworthy that the father does not oppose travel to (country omitted) occurring; he simply opposes the length of the proposed travel.
The degree of satisfaction in the travelling parent's promise to return to the jurisdiction
I previously referred to the submissions made about the potential flight risk of the mother (which she of course denies). It is curious, however, that the mother has chosen to sell her property in Sydney rather than simply retaining it as a de facto security for her return. The mother's explanation is, however, plausible. Her explanation is that she recently got an offer that she said “was just too good to refuse”, but I note that there is no evidence to confirm such an offer was made. The mother also submitted that she was formerly in a relationship with a (nationality omitted) national, but asserts that that relationship is no longer on foot.
Whether financial security is appropriate
The mother did, during the course of submissions, offer that the net proceeds from the sale of the Sydney home be retained in Australia save for a lump sum of $50,000 to $100,000, and income accruing from any investment of those funds. She seeks the lump sum of between $50,000 and $100,000 she would be able to have access to for living and related expenses in (country omitted) in addition to the income that would accrue. The balance, however, would be retained. She anticipated receiving a net sum of approximately $900,000 from the sale of the property which would mean that approximately $800,000 minimum would be retained for security.
Hardship issues
There were no obvious hardship issues. The mother is yet to secure employment. There is no evidence that costs had been expended on accommodation and so on. That said, it would have been unwise for the mother to have proceeded to expend or commit to such expenditure knowing that the trip had been opposed and a decision by a Court was required. I have already canvassed the arguments about potential detriments to the children's relationship with the father given the length of the proposed trip.
Whether the proposed country of travel is a signature to the relevant Hague Convention
As stated previously, (country omitted) is a member of the Convention on the Civil Aspects of International Child Abduction 1980 that provides a process for the recovery of a child subject to wrongful removal.
I also note that (country omitted) is also now a member of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children 1996, having signed that Convention in May 2017. This allows (country omitted) to recognise, or transfer to, the appropriate jurisdiction for the application of the relevant law under which the subject child is protected. This could provide possible assistance in enforcing Australian Court orders in (country omitted).
Additional considerations: Section 60CC(3)
I make the following comments relevant to section 60CC(3).
In relation to section 60CC(3)(a), the views of the children, there is no independent assessment before the Court. That said, I note that the children have enjoyed a history of travelling overseas, particularly to Greece, where there is extended paternal and maternal family. I note again the following comments of Ms T in the CDC memorandum:
Although Ms Samaras presented a compelling argument for the benefits of the short term international educational experience, it is acknowledged that the children would undoubtedly miss Mr Foris as he would miss them. Ms Samaras suggested some strategies for maintaining between the children and Mr Foris, such as unlimited Skype or FaceTime and the option of Mr Foris travelling to (country omitted) to visit. X and Y are of an age where they are developmentally more capable of maintaining a robust attachment without having regular and substantial contact, and are also able to more effectively utilise remote contact methods such as Skype and FaceTime.
In relation to section 60CC(3)(b), the nature of the relationship between the children and each of the children's parents, etcetera, both parties present as having a close and continuing relationship with the two children. I refer to the comments of Ms T in the CDC memorandum.
In relation to section 60CC(3)(c), the extent to which each parent has facilitated an opportunity to participate, etcetera, and section 60CC(3)(ca), the extent to which each of the children's parents have fulfilled their obligations to maintain the children, etcetera, while both parties made allegations against the other during the now settled substantive proceedings, these provisions are not relevant to the discrete issue.
As to section 60CC(3)(d), the likely effect of any changes, etcetera, I refer to previous comments.
As to section 60CC(3)(f), the capacity of each of the child's parents, etcetera, that is not relevant to the discrete issue before me.
In relation to section 60CC(3)(g), maturity, sex, lifestyle and background, etcetera, the children have Greek heritage that they share with both parties. As stated, the parties disagree about X’s capacity to seek selective school entry.
In relation to section 60CC(3)(h), I am not aware that either child or the parties identify as Aboriginal or Torres Strait Islander.
In relation to section 60CC(3)(i), the attitude issues, etcetera, that is not relevant to this discrete issue before me.
Similarly, in relation to section 60CC(3)(j), family violence, and section 60CC(3)(k), family violence orders, that is not relevant to the discrete issue before me.
As to section 60CC(3)(l), that is not applicable as this is a final hearing of a discrete issue.
As to section 60CC(3)(m), any other fact or circumstance, etcetera, there are no other facts or circumstances that the Court wishes to refer to that have not already been raised or canvassed in these reasons.
Conclusion
This is a very difficult discrete issue for the Court to decide. I am satisfied that both parties are genuine in their submissions to the Court. Nevertheless, a decision is needed to break the impasse. Clearly, one of the parties will be disappointed by the Court's decision as the Court is only in the position to favour one of the parties' proposals in its entirety.
Having regard to the respective proposals and submissions in light of the available evidence and the relevant statutory provisions, the Court is satisfied and finds as follows; namely, that the proposed trip by the children with the mother to (country omitted) would not be in their best interests at this time. While there would be benefits to the children spending a quality period in (country omitted) to enjoy a different culture and learn languages such as (omitted), I am satisfied that the detriments outweigh the positives. The children are still quite young and a six month period is a very long time for children of this age. While I note the Family Court's comments that the children are of an age where they may be developmentally more capable of maintaining a robust attachment without having regular and substantive contact, I am unable to make such a finding in the context of this dispute.
Consequently, the travel application sought by the mother is denied. I will, however, make orders consistent with the father's proposal that would enable the children to travel with the mother to (country omitted) this coming long summer school holidays. I will adjust the start time to the first Saturday after the conclusion of school, and the conclusion being the last Saturday before school returns in 2019. While I appreciate that this will have the children in the mother's care for the coming Christmas period, I am satisfied that this is appropriate for the children and maximises the experience of a Canadian winter.
If, of course, the mother decides not to travel to (country omitted) with the children for the long summer school holidays, the existing orders as agreed will remain in full force and effect.
The mother will need to notify the father in writing of her intention to travel to (country omitted) during the forthcoming long summer school holidays, or not, by no later than 4 pm on 30 June 2018.
There will be Orders and Notations of the Court to reflect this decision.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Monahan
Date: 23 March 2018
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Jurisdiction
-
Remedies
-
Procedural Fairness
0
0
2