FULLAGER & BARBERRY

[2016] FCCA 3251

FEDERAL CIRCUIT COURT OF AUSTRALIA

FULLAGER & BARBERRY [2016] FCCA 3251

Catchwords:
FAMILY LAW – Interim parenting – mother’s proposed travel with child outside Australia – removal of child from Airport Watch List – permission to mother to travel with child to (country omitted) and Hague Convention countries.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 61DA(3), 65DAA (3), 65D

Cases cited:

Banks & Banks (2015) FamCAFC 36

Eaby & Speelman [2015] FamCACF 104

Goode & Goode (2006) FLC 93-286

Marvel & Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348

Applicant: MS FULLAGER

Respondent: MR BARBERRY

File Number: CAC 462 of 2012

Judgment of: Judge Newbrun

Hearing date: 22 November 2016

Date of Last Submission: 1 December 2016

Delivered at: Parramatta

Delivered on: 21 December 2016

REPRESENTATION

Solicitors for the Applicant: Matthew Folbigg Pty Ltd

Solicitors for the Respondent: Coleman Greig Lawyers

Solicitors for the Independent Children's Lawyer: Legal Aid NSW Parramatta Family Law

ORDERS PENDING FURTHER ORDER

1. The Court requests that the Australian Federal Police remove the name of the child X born (omitted) 2011 from the Airport Watch List at all points of international arrivals and departures in Australia.

2. The mother is at liberty to remove the child from the Commonwealth of Australia for the purpose of a holiday on the following conditions:

   (a)     the mother notifies the father of the holiday time not less than 2 months prior to the proposed travel

   (b)     the time outside Australia is no longer than 4 weeks in any one calendar year

   (c)     the mother provides the father with a copy of the travel itinerary and the return air tickets no later than 21 days prior to the travel

   (d)     the mother shall be permitted to travel on a holiday with the child to (country omitted), being an overseas territory of the (country omitted), and otherwise to countries which are signatories to the Hague Convention on the Civil Aspects of International Child Abduction

3. The father’s time with the child is suspended during any period that the mother and the child are travelling pursuant to order 2 and the mother shall ensure that the child is available for make-up time with the father within 2 months of the trip.

NOTATION

1. It is noted that the mother plans to take the child to (country omitted) and the (country omitted) in (omitted) 2017.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

CAC 462 of 2012

MS FULLAGER

Applicant

And

MR BARBERRY

Respondent

REASONS FOR JUDGMENT

Introduction

1. The Court has been asked to determine on an interim basis a travel dispute between the parties in relation to the child X born (omitted) 2011.

2. The mother seeks to be permitted to travel overseas with the child and proposes a minute of order in this context as annexed to her written submission. The minute of order has a notation that the mother plans to take the child to (country omitted) and the (country omitted) in (omitted) 2017.

3. The father opposes the child being taken to (country omitted); the father submits that there is some doubt as to whether (country omitted) falls under the scope of the Hague Convention on the Civil Aspects of International Child Abduction (the Convention). The father consents to the child being taken by the mother on a trip to the (country omitted), but the holiday should only be for the duration of the gazetted school holiday period and that make up time be provided for the period that the child will not see the father.

4. The Independent Children’s Lawyer (“ICL”) does not oppose the mother’s proposal regarding the travel overseas, however contends that the period for travel should be limited to 4 weeks.

5. The Court refers to its orders and directions made on 22 November 2016.

6. The Court notes that on 1 April 2016 it handed down its interim decision in relation to a disputed Rice and Asplund issue; the Court determined that the mother should be permitted to seek fresh parenting orders and proceed with her Further Amended Initiating Application filed 20 August 2015. There had been prior final consent parenting orders between the parties on 2 July 2012.

7. At the Court fixture on 22 November 2016, each party indicated what affidavit material they would be relying upon for the disputed travel issue; the mother’s affidavit material is set out in exhibit A and the father’s affidavit material is set out in exhibit B.

8. Both parties and the ICL provided short written submissions to the Court on this travel issue.

Evidence

1. The father is concerned that the mother does not intend to facilitate a relationship between the child and himself moving forward. He states that it is this concern, as well as other comments made by the mother, from time to time, during the relationship, that causes him concern that the mother may not return the child if she was permitted to travel overseas.

2. The father asserts that during the parties’ relationship, the mother said to him on a regular basis that she really wanted to move overseas, and that she didn’t care where that was, but her only requirement was that it is somewhere where it snows.

3. The father asserts that he initiated proceedings in 2012 in circumstances where the mother had said to him that she was moving to Sydney or she was going overseas.

4. The father states that he understands the mother wishes to travel to the (country omitted), (country omitted), and (country omitted) with the child. He asserts that the mother provides no details of that arrangement other than a vague proposal to be able to travel as and when she sees fit and he does not consent for that to occur.

5. The father states that it is his proposal that neither party travel with the child overseas at this point in time, “until these matters are finalised”, and he is concerned that, without a firm proposal as to the travel arrangements, the mother will take the child overseas if she is concerned about these proceedings. Again, the Court notes that in the father’s written submission, he consented to the child being taken by the mother to the (country omitted) for a holiday but being confined to the gazetted school holiday periods and that make up time be provided to him.

6. The father also refers to his concerns in relation to the child’s ongoing relationship with the paternal grandmother, and the mother’s role in relation to this issue.

7. The father refers to annexure J, being his treating clinical psychologist’s report of 31 May 2016, which refers to, inter alia, the father’s compliance with all treatment recommendations, “as evidenced by his recovery”.

8. The mother, in her affidavit filed 9 September 2016 relied upon, paragraphs 1-9, and paragraphs 40-59, which refer, inter alia, to details regarding “the proposed overseas trip in 2017.” She refers to the maternal grandmother being nationality omitted) and having family in (country omitted). She has always had dual citizenship, nationality omitted) and Australian, as have her siblings and her parents. Her upbringing was bilingual. The maternal grandparents are settled in Australia, as are her brother and his family. They travel to stay with their nationality omitted) relatives on a regular basis and for several weeks at least every two years.

9. The mother states that Federal Magistrate Brewster, as he then was, made interim orders allowing the mother to take the child to (country omitted) as planned in May/June 2012. The mother and the child travelled accordingly.

10. The mother states that she had hoped to visit family in (country omitted) again at the end of 2013. The mother states that the father changed his position a number of times and withdrew his consent for the issue of a passport for the child in early December 2013. The mother then consented to the child spending one overnight occasion with the father before the proposed travel. Apparently consent was then given by the father, and the mother travelled to (country omitted) with the child in December 2013/January 2014.

11. The mother states that she proposed to travel to (country omitted) with the child in May 2016. Apparently the father did not consent and the mother did not go to (country omitted) this year as hoped.

12. The mother states that in 2017 she is able to access long service leave entitlements for the first time. The maternal uncle died in (country omitted) in (omitted) 2015, and a commemorative event is scheduled for (omitted) 2017. The mother states that it is important for the child to attend and she would like to take her. She states she is close to her maternal uncle’s daughter and would like to support her. She states that this daughter is bringing her husband and her daughters aged 16 and 21 to the event. The mother states that the maternal grandmother will also attend and would like the mother to attend. The mother states that she could not attend the funeral which was at short notice.

13. The mother states she would also like to take advantage of her leave and some time before the child’s schooling is further advanced to take the child to visit (country omitted) and extended family there.

14. The mother states that she has maintained contact with the child’s paternal family, some members of which are living in (country omitted) in the (country omitted). The father’s sister has asked the mother several times to come and stay with her. There is an email from this person to the mother dated 18 August 2016 in which she asked whether the mother is coming to visit with the child in around (omitted) 2017.

15. The mother states that she would be able to stopover between (country omitted) and (country omitted) to visit the father’s sister and she is happy to facilitate the child’s involvement with her paternal family in that regard.

16. The mother states that ideally she would like to travel with the child from Australia to (country omitted) and then to (country omitted) via the (country omitted) between June and August 2017.

17. The mother states that she is aware that the child would miss about 6 to 8 weeks of school and she is happy to ensure that the child does any allocated work during the trip. She states that during their time in (country omitted) and (country omitted) the child would be able to speak (nationality omitted) all the time and accordingly experience immersion in that language and culture.

18. The mother states that she is very happy to provide all details about her proposed travel; however she cannot afford to incur the cost of tickets/accommodation until the trip is confirmed.

19. The mother states that the child currently attends three days per week at preschool. She states the child is currently in good health, is happy and settled.

Relevant Legal Principles

1. The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.

2. In Marvel & Marvel (2010) 43 Fam LR 348, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:

   [120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   [122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   [123] Later, at paragraph 100 their Honours amplified their comments and said:

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

3. Of this, the Full Court in Eaby & Speelman [2015] FamCACF 104 said at 19:

   As would be immediately apparent, this approach enables the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.

4. The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks & Banks (2015) FamCAFC 36, especially at paragraphs 46 to 52.

5. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.

6. In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

7. Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).

8. When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order: section 61DA (3).

9. If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.

10. If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60 CC, the court must consider making an order that the child spends substantial and significant time (as defined in section 65 DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60 CC, or impracticable.

11. If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the court may make such orders in the discretion of the court that it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.

The Best Interests of the Children

Section 60CC Considerations

Subsection (2a) - Meaningful relationship primary consideration

1. The child would appear to have a meaningful relationship with each parent and would benefit from a continuation of those meaningful relationships.

2. At this interim stage, as to the concern of the father that the mother does not intend to facilitate a relationship between the child and the father moving forward, there is some force to the submission of the mother that her Further Amended Initiating Application, filed 9 September 2016, sets out Proposed Parenting Orders for the child to spend time with the father on a final basis (but pending confirmation that it is safe for her to do so) and is inconsistent with the Fathers’ concern.

3. Further, the Court notes that the mother by consent entered into interim parenting arrangements for the child to spend time with the father, albeit on a supervised basis, on 22 November 2016, with the notations to the orders made on that date stating, inter-alia, that it is the parties’ intentions to work towards the child having unsupervised time with the father.

4. The mother’s proposed travel outside Australia with the child “is no longer than six weeks in any one calendar year.” The mother proposes an order that she ensure that the child is available for make-up time within two months of any overseas trip.

5. The ICL submits that, in this context, it is important to note that the child has not had any contact with the father from April 2016 to December 2016, some 8 months. The ICL is concerned about the impact which a further period of non-contact may have on the child’s relationship with her father. The ICL, accordingly, proposes that the mother’s proposed holiday travel with the child be limited to 4 weeks. There is some force to this submission.

6. At this interim stage, the Court is satisfied that should the child spend up to 4 weeks in any one calendar year overseas with the mother, that her meaningful relationship with the father should not be detrimentally affected, particularly in circumstances where make-up time will be implemented.

7. At this interim stage, the Court is of the view that should the child spend up to 6 weeks in any one calendar year overseas with the mother, there is a not insignificant risk that the child’s meaningful relationship with the father might be detrimentally affected, again in circumstances where the child has not spent time with the father from April 2016 to December 2016, noting that only recently consent interim orders were made providing for the child to resume spending time with the father but on a supervised basis.

(2)(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. Not applicable.

3) (a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. Not applicable.

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)

1. There is some force to the mother’s submission that the proposed trip of the mother to take the child to (country omitted) and the (country omitted) in (omitted) 2017 would likely maintain and strengthen relationships with both the child’s maternal family (who will visit the family event in (country omitted)) and her paternal family (the father’s sister and stepmother in the (country omitted)), and further that the proposed trip allows the child to connect and maintain links with her nationality omitted) heritage.

(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; and to spend time with the child; and to communicate with the child

1. Not applicable.

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

1. Not applicable.

(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: i)    either of his or her parents; or ii)    any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. The Court refers to the meaningful relationship primary consideration discussed above.

(3) e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. Not applicable.

(3)(f) The capacity of: each of the child’s parents; and any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs

1. Not applicable.

3) (g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. Not applicable.

3)(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right

1. Not applicable.

3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. Not applicable.

3)(j) Any family violence involving the child or a member of the child’s family

1. Not applicable.

3)(k) If a family violence order applies, or has applied, to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any evidence admitted in proceedings for the order; any findings made by the court in, or in proceedings for, the order; any other relevant matter

1. Not applicable.

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

1. Not applicable.

3) (m) Any other fact or circumstance that the court thinks is relevant

1. The Court refers to the father’s concern, discussed above, that the mother does not intend to facilitate a relationship between the child and himself moving forward, together with his allegations that during the relationship the mother said to him on a regular basis that she really wants to move overseas, that she doesn’t care where she moves overseas to as long as it is somewhere where it snows, together with other remarks allegedly stated by the mother to the father prior to his institution of legal proceedings in 2012 that the mother proposes to move to Sydney or else she is going overseas.

2. It is noted that the mother denies the father’s assertions above that she allegedly had threatened to take the child overseas to live with her.

3. The mother asserts that she is firmly based in Australia; she has permanent part-time work, and her parents, her siblings and their families live in Australia. The father submits that the mother does not have sufficiently strong ties to Australia; he submits that the mother owns no property in Australia.

4. The Court notes that the mother has travelled overseas with the child on two occasions and returned to Australia since the above alleged comments were made by her to the father, without incident. Those trips were in about mid-2012 and in December 2013/January 2014. On both occasions the mother travelled with the child to (country omitted). The Court regards the mother’s return to Australia with the child following these two previous trips as particularly significant.

5. The mother’s affidavit filed 10 November 2016 sets out a broad itinerary and timeframe for travel to (country omitted) and the (country omitted). The mother states in her Affidavit filed 9 September 2016, inter-alia, that she is very happy to provide all details about her proposed travel, however she cannot afford to incur the cost of tickets/accommodation until the trip is confirmed (by the Court). The mother states in her latest Affidavit that she has not yet booked any flights or accommodation. These positions of the mother would appear quite reasonable.

6. The Court notes the mother’s written submission that although (country omitted) is not a separate signatory to the Hague Convention, the Convention applies by virtue of (country omitted)’s status as an overseas territory of the (country omitted).

7. The mother submits that:

   (country omitted) is a part of the (omitted) group of (country omitted) and was designated as an overseas territory of (country omitted) in (omitted) and given a Territorial Assembly on (omitted).

   The Hague Convention on the Civil Aspects of International Child Abduction (‘the Convention’) was ratified by (country omitted) on 16 September 1982 and came into effect in the whole of the territory of the (country omitted) on 1 December 1983. (omitted) (Hague Conference on Private International Law) notes that:

   The instrument of ratification of (country omitted) clearly indicates that the Convention applies to the entire territory of the (country omitted). Consequently, besides (country omitted) and the Overseas Departments ((country omitted), (omitted)), the Convention applies to all of the other nationality omitted) overseas territories.

   In those circumstances, although (country omitted) is not a separate signatory to the Convention, the mother submits the Convention applies by virtue of (country omitted)’s status as an overseas territory of the (country omitted). However even if there is any difficulty in that regard the mother submits that there is no risk that she would remain in (country omitted) or any evidence to support that contention. The benefit to X outweighs any (remote) concern in that regard.  

8. Further, the mother, through her solicitors, has provided to the Court the mother’s solicitor’s letter to the Consulate General of (country omitted) in Sydney dated 24 November 2016 requesting confirmation that the Convention applies in (country omitted). The mother’s solicitors had also provided to the Court the Consulate General of (country omitted)’s response to the above letter dated 1 December 2016 confirming that the Convention does so apply to (country omitted).

9. The Court accepts the mother’s submission that although (country omitted) is not a separate signatory to the Convention, the Convention applies by virtue of (country omitted)’s status as an overseas territory of the (country omitted), as confirmed by the Consulate General of (country omitted), Sydney.

10. In any event, even if there is any doubt to the above applicability of the Convention to (country omitted), there is considerable force to the mother’s submission that the evidence presently before the Court does not indicate that there is a significant risk that the mother would remain in (country omitted) with the child, even accepting that she apparently has some relatives there.

11. In conclusion, the Court is of the view that should the mother be permitted to travel with the child to (country omitted) on holiday (noting she also intends to travel with the child to the (country omitted)), it is highly likely that she will return to Australia with the child following the holiday. In the remote event that she stays in (country omitted) with the child, the father should be able to invoke the relevant provisions of the Convention.

12. The father and the ICL submitted that the mother’s proposal to spend holiday time overseas with the child for 6 weeks in any one calendar year would be detrimental to her educational advancement. There is some force to this submission, noting that the child will be embarking on her first year of formal education in 2017, even taking into account the benefits to the child of speaking the nationality omitted) language overseas, and strengthening her relationships with her extended family overseas.  

Summary

1. Evaluating the above relevant considerations under section 60 CC of the Act, the Court is of the view that it will be in the best interests of the child to make interim orders as follows regarding the travel issue:

   (1)The Court requests that the Australian Federal Police remove the name of the child X born (omitted) 2011 from the Airport Watch List at all points of international arrivals and departures in Australia.

   (2)The mother is at liberty to remove the child from the Commonwealth of Australia for the purpose of a holiday on the following conditions:

   (a)the mother notifies the father of the holiday time not less than 2 months prior to the proposed travel

   (b)the time outside Australia is no longer than 4 weeks in any one calendar year

   (c)the mother provides the father with a copy of the travel itinerary and the return air tickets no later than 21 days prior to the travel

   (d)the mother shall be permitted to travel on a holiday with the child to (country omitted), being an overseas territory of the (country omitted), and otherwise to countries which are signatories to the Hague Convention on the Civil Aspects of International Child Abduction

   (3)The father’s time with the child is suspended during any period that the mother and the child are travelling pursuant to order 2 and the mother shall ensure that the child is available for make-up time with the father within 2 months of the trip.

   (4)It is noted that the mother plans to take the child to (country omitted) and the (country omitted) in (omitted) 2017.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 7 December 2016