Gabriel and Gabriel

[2017] FamCA 433

FAMILY COURT OF AUSTRALIA

GABRIEL & GABRIEL [2017] FamCA 433

FAMILY LAW – CHILDREN – OVERSEAS TRAVEL – Where the father made an application to take the children on an overseas holiday to visit his relatives – Where the father is diagnosed with an illness – Where the mother is concerned that the father poses a flight risk – Where the father has offered to pay a bond of $10,000 – Orders made for the children to travel overseas with the father and for $10,000 to be paid to the mother’s solicitors in the case that the children do not return to Australia in accordance with the Orders.

APPLICANT: Ms Gabriel

RESPONDENT: Mr Gabriel

FILE NUMBER: SYC 3413 of 2013

DATE DELIVERED: 20 June 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 19 June 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gould

SOLICITOR FOR THE APPLICANT: Pigdon Norgate Solicitors

THE RESPONDENT: In Person

Orders

IT IS ORDERED

1. That the children B born … 2002 and C born … 2007 (“the children”) be permitted to travel to Country D in Europe with the father leaving Australia on 30 June 2017 and returning to Australia on 16 July 2017.

2. That both of the children’s parents sign all documents and give all necessary consents to enable the children’s travel.

3. That from the ANZ Premium Saver Account #...78, the sum of $10,000 be allocated to a bond to be released to the solicitors for the mother in the event that the children do not return to Australia in accordance with these Orders and that sum shall not be dealt with other than in accordance with this Order.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3413 of 2013

Ms Gabriel

Applicant

And

Mr Gabriel

Respondent

REASONS FOR JUDGMENT

1. These reasons are to be read in conjunction with the Reasons for Judgment in the substantive application which was heard on 19 June 2017.

2. In the course of those proceedings, it was clear that the issue of the children’s proposed travel with their father to Country D in Europe for a short holiday, which was opposed by the mother, needed to be determined as a matter of urgency.

3. The children, B aged 15 and C aged 10, live with their mother for nine nights each fortnight and with their father for five nights each fortnight. The father’s application in the substantive proceedings is for that time to increase to equal time.

4. It is not in dispute that the children have a warm and loving relationship with their father and enjoy their time with him. It is not in dispute that it is appropriate that they spend half of all school holiday periods with him.

5. The father, for some time, has wished to take the children to Country D to see his family of origin. The father’s mother and siblings live in Country D. The children have a grandmother, aunts, uncles and 14 cousins in Country D who they have not seen since the parties separated in 2010. The mother has opposed any proposed travel to Country D by the children.

6. One of the father’s siblings has purchased tickets for the children and the father to travel to Country D on 30 June 2017, returning on 16 July 2017. If the tickets are not used, a penalty of 300 Euros per person will be incurred.

7. The father was diagnosed with colon cancer in November 2016. He had surgery in December 2016 and commenced on a course of chemotherapy. The father asserted that he has kept the mother fully informed of his illness and the course of treatment recommended by his doctors. The father expects to be able to return to work in August 2017 after completing the prescribed chemotherapy.

8. The mother’s concerns in relation to the proposed trip are set out in her affidavit sworn 15 June 2017 as follows:

   23My concerns in respect of the Children’s travel to [Country D] are as follows:

   23.1[The father] has not disclosed sufficient details in respect of his health, including his prognosis, diagnosis, treating plans and estimated recovery time. [The father] only provided a medical certificate and a short written letter from [Dr E] from [Suburb F] Hospital on 4 June 2017 advising that [the father] was responding well to treatment and that he will be able to interrupt his chemotherapy treatment while he is overseas.

   23.2[The father] has not provided sufficient information in relation to the care arrangements for the children in the event that [the father] is at risk of requiring further treatment and/or hospitalisation while he is away.

   23.3[The father] has not provided a detailed itinerary of where the Children will be travelling during their time in [Country D], except for the addresses of where they will be staying each night. [The father] has also not provided the mobile phone numbers for the accommodation so that I can contact the Children, nor has he agreed to facilitate the Children speaking with me on the phone.

   23.4 [The father] has agreed for $10,000 to be used from the funds held in the Controlled Monies Account to act as security for his proposed travel to [Country D] however I am concerned that [the father] may not return the Children to Australia given that he is unwell, his family reside in Europe and he owns property in [Country D].

9. On 6 April 2017, the solicitors for the mother wrote to the father asking for details of any treating practitioners including his general practitioner, oncologist and any other specialist.

10. On 20 April 2017, the father responded in the following terms:

    Thank you for your concern about my health issues. I can assure you that [the mother] knows everything about what I have as I talk to her regularly about the cancer and treatment and arrangements for the Children. I was diagnosed in November with colon cancer which was removed the 12^th of December at [Suburb F] hospital by the surgeon [Mr G] thanks to a successful operation. Unfortunately, the cancer has spread to the liver and after seeing the liver surgeon [Dr H], we decided to have six months of Chemo to try to get rid of the tumors in the liver before deciding of (sic) an eventual operation to the liver. [Dr I] is my oncologist.

    …

    I can assure you despite the side effects of Chemo that it does not affect my ability to look after the children and [Dr H] is very confident that the cancer in the liver will be removed. I am in excellent spirit.

11. Generally, in relation to the trip to Country D the father concluded, in his letter dated 20 April 2017:

    I have plan (sic) to take the children to [Country D] the next school holiday from the 30^th of June to the 16^th of July unfortunately [the mother] is refusing to sign the documents to prepare the passport of the Children. She has refused since 2010 … arguing I was a “flight risk” but in front of Justice Rees the 29^th of July she said it was not a problem anymore. However she seems like she is changing her mind again. Clearly she told me that the Children will not go to [Country D] unless I release more money from the trust account. I find it a very immature and childish comment as it does not clearly put the interest of the children first who have not seen their grandmother and most of their cousins and uncles for seven years. July is the best time for them to travel as it is summer school holiday. If they go later in the year the weather will not be warm and they will not see their cousins as they will be all studying or working. I propose that the children goes (sic) to [Country D] in accordance with the orders I seek in my response to your application.

12. On 11 May 2017, the father wrote a further letter to the solicitors for the mother in which he stated:

    It was unnecessary to issues (sic) some subpoena as [the mother] and the Children are perfectly aware of my progress concerning the Cancer treatment. The doctors cannot tell more than you, myself or [the mother] already know. This is why I will not even bother to respond to those Subpoena. When I get more news, everyone will know including Justice Rees.

13. On 22 May 2017, the father wrote to the mother’s solicitors stating:

    In July the weather is at its best and the Children will be able to see all their cousins (14 in total) which will not be possible in September/October as there is no school holiday (sic) in [Country D]. As I said before, I do not organize this trip for myself but for the children so they can meet their [D] family for the first time in seven years. It would be a pity to travel in September only to see my brothers and sister without most of their children.

    I have talked to my oncologist, [Dr I], about this trip to [Country D] in July and she clearly told me that a two weeks trip overseas is not a problem as long as the chemo treatment is postponed two weeks before the holiday in order for the white cell count to be back at normal level. [The mother] is perfectly aware that I have chemo treatment every second Tuesday and I have side effects the first week. After the first week, I have a week without chemo: the side effects are gone and my white cells count (sic) go back to normal level. Attached [Dr I] medical certificate dated 23 May 2017 which will clarify some of [the mother’s] concerns about my illness. We have done a second CT scan that shows that the tumors in the liver have shrunk due to chemotherapy treatment and that there is no other tumor in my body which is very good news.

    About the trip itself, it is of course mandatory to take travel insurance. I find quit (sic) extraordinary [the mother’s] doubt that I can’t look after the Children while overseas. I have been able to care for the Children normally for the last 3 months despite my treatment and its side effects. I will not have treatment at all two weeks before the trip so there is very little chance for me to be sick as I have responded to the chemotherapy treatment very well so far.

    However, in the event I become ill, my brothers and sisters will look after me and the Children and will organize the children to go back to Australia. [The mother] is perfectly aware of their capability to do so as she has met them many times before the separation. The children and I are not going to travel much: we will stay a couple of day (sic) in [J Town] near [City K] at my mother’s family home where we will also visit my brother [Mr L] and his two Children, then a week in [Region M] to visit my sister [Ms N] and my sister in law [Ms O] and there (sic) 8 children. We will then take the train to [P Town] to visit my brother [Mr Q] and his 4 children and come back to [City K].

    In order for me to visit my family in July, we need to have at least the Children passports (sic) ready. Will [the mother] sign the documents for the passport to be ready in time for the July trip? If we want to be able to travel in July and in order to avoid the stress of waiting for the passport, it needs to be done this week.

14. On 29 May 2017, the solicitors for the mother wrote to the father stating:

    Our client requests that you provide a report from your treating practitioners setting out your diagnosis, prognosis or any recommendations that they may have with respect to your proposed travel with the children.

    In the event that your treating practitioners confirm that your health will not impact on your ability to travel, our client agrees for the children to travel with you to [Country D] for two weeks from 29 June 2017 to 17 July 2017.

15. On 31 May 2017, the solicitors for the mother wrote to the father advising:

    Our client requests that you provide a report from your treating practitioners setting out your diagnoses, prognosis or any other recommendation that they may have with respect to your proposed travel with the children. The Medical Certificate that you have previously provided is not sufficient.

    In the event that Doctor [I] confirms that your health will not impact on your ability to travel, our clients consent [sic] to the children travelling will be subject to the following:

    1At least 14 days prior to departure you provide our client with a copy of return tickets for the children.

    2You provide our client with a detailed itinerary providing addresses and phone numbers for the accommodation in which the children will be staying.

    3You deposit $10,000 into the trust account for Pigdon Norgate Family Lawyers to be retained and distributed as follows …

    Finally our client again asks for the release of funds, being $65,000 for each of you, noting that the release of funds does not prejudice your case and that you only appear to object to the release of funds as you believe our client has spent too much.

16. On 1 June 2017, the father wrote to the mother’s solicitors stating:

    It is very unlikely that Doctor [I] can write this letter anytime soon as she is overseas for two weeks but I will ask one of the other doctor (sic) at the cancer service if they can explain why to postpone the treatment for a month is fine.

17. In the letter dated 1 June 2017 the father gave the exact addresses of his mother, sister and brothers, and the flight details. The father concluded:

    In any events (sic), we now need to have the passport done. [The mother] needs to sign the request for the passport this week otherwise there will be an additional fee of $182 per child added to the $132 already. It does not look like lot (sic) but it is less money that we could eventually use for the Children. Could you please kindly call [the mother] today and have those passport (sic) done? Those passports will be sent to her address not mine so there is no risk that I can take the children without her consent.

18. On 4 June 2017, the father wrote a letter to the mother’s solicitors which stated:

    Find attached letter from Doctor [E] who is acting on behalf of Doctor [I] while she is overseas.

    I have now responding (sic) to your concern about my health: you have a diagnosis and prognosis which was sent to you in the Centre link approved medical certificate signed by Dr [I] and, you now have a letter from Doctor [E], who is telling that it is perfectly ok for me to stop my treatment for two rounds while going overseas.

    I have sent this letters (sic) to [the mother], However she is still refusing to sign the documents to apply for the passport. If we had down (sic) it on Saturday, we could have had the passport done in time without paying the late fee of $182 per child but it seems like it is not a concern for her. The passport now costs $139 + $182 per child. I will pay the $139. Will [the mother] pay the balance which is now $503 and, as I expect that she won’t, will she now approve the trip to [Country D] as my entire family needs to know what is going on.

    I await for your urgent response.

19. With that letter of 4 June 2017 the father annexed a document signed by Dr E (“Dr E”) dated 2 June 2017 which read:

    I am a Medical Oncologist working with Dr [I] at the [R] Cancer Service. I met [the father] briefly in Feb 2017 when Dr [I] was away.

    [The father] has responded very well to current chemotherapy with the measured [illegible] and abdominal lymph node each now less than half the volume on the first CT Scan. It is thus perfectly safe for [the father] to interrupt his chemotherapy, omitting treatments done on June 20^th and July 4^th, resuming on July 19^th 2017. [Emphasis in original]

    There is no likelihood that the Chemotherapy (or its interruption) or the responding cancer will reduce [the father’s] capacity to care for his children during the planned trip from June 29^th to July 18^th.

20. On 5 June 2017, the father wrote a further email addressed both to the mother’s solicitor and to the mother, in which he stated, inter alia, “I honestly have no idea what Doctor [I] or myself can do more.” The father went on to say:

    It seems like that I have not inform you (sic) of my health condition or any of my treatment but [the mother] was the first to know my condition or treatment anytime I had updated informations (sic);

    1I told her I was diagnosed with bowel cancer in November

    2she than (sic) knew the cancer had been remove (sic) at [Suburb F] hospital the 12 of December and I remember telling her in front of the children they had successfully remove (sic) the cancer in the bowel but it had sprayed (sic) in the liver in two spots.

    3After the scan in January (sic), I told her that a chemo treatment would start for six months every two weeks and that depending on the result of the chemo, I may have liver surgery in order to remove the tumors.

    4Last month I told her that I was getting a second medicine for chemo treatment.

    6Now you also both know thanks to a Ct scan which was done after the first 3 months of treatment end of may (sic) that the tumors are now half the size of what they were during the first scan in January and that I am responding well to the treatment and that a pospone (sic) of the treatment for two rounds will not affect my capability to look after the children. That was your request in your letter dated 31st of May

    7You have the itinary (sic) and I will not drive to [P Town]: I will take the TGV.

    8I have advise (sic) [the mother’s solicitor] in writing that travel insurance was mandatory.

    9I told [the mother’s solicitor] that the $10,000 would have to be taken from the ANZ trust account into a new ANZ trust account to be hold (sic) by [the mother’s solicitor].

    10My sister in law [Ms S], [Mr Q’s] wife have purchase (sic) the tickets, please find them attached. …

    Will you now kindly approved (sic) this trip, the Children will be delighted as they have been waiting for this for a long time. They do not know that I am planning this trip as I have been very careful not to give them false hope.

21. At the commencement of the hearing on 19 June 2017, the mother had not signed the documents required for the children’s passports to issue and remained opposed to their proposed travel.

22. It is difficult to know what more the father could have done to address the mother’s concerns.

23. In relation to her assertion that the father has not disclosed sufficient details of his health including his prognosis, diagnosis and treating plans, I accept the evidence of the father that he has kept the mother informed of all the information which he has been given. In any event, the letter from Dr E makes it clear that there is no danger to the father caused by the interruption of the chemotherapy to accommodate the holiday.

24. I do not accept that the father has not provided sufficient information in relation to the care arrangements for the children. In the event that he becomes ill while he is away, clearly the husband’s mother, sister, sisters-in-law and brothers will be available to care for the children if necessary.

25. The father has provided a detailed itinerary.

26. As to the mother’s assertion that the father poses a flight risk, I do not accept that to be the case. In submissions, counsel for the mother submitted that the proposed trip could take place in September 2017. Why the father would not pose a flight risk in September but would do so in July is not explained.

27. On behalf of the mother, it was submitted that the information provided by Dr E is not sufficient and that the medical information in relation to the husband should have been provided by Dr I.

28. I accept the evidence of the husband that as he is a public patient at Suburb F Hospital, he is not necessarily able to see doctors at his convenience but only at theirs, and Dr I has been on holidays and is unavailable.

1. No submissions were directed, by counsel for the mother, which suggested that Dr E’s evidence was not expert evidence and not reliable. In circumstances where Dr E, who is a medical oncologist working with Dr I, clearly had access to Dr I’s records, I accept that Dr E is able to give evidence of the effect of the cessation of chemotherapy and the likely ongoing effects of the father’s illness.

2. In all the circumstances I am satisfied that it is in the children’s best interests that they have the opportunity to travel to Country D to visit their relatives and that they do so during the Country D school holiday period.

3. The father has offered a bond of $10,000 which can be satisfied from his portion of the funds in the ANZ account which holds the proceeds of sale of the former matrimonial home.

4. The Orders in the substantive proceedings will deal with the disposition of the bond.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 20 June 2017.

Associate:

Date:  20/06/2017