Gilvray & Melland
[2023] FedCFamC2F 942
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gilvray & Melland [2023] FedCFamC2F 942
File number(s): MLC 4931 of 2023 Judgment of: JUDGE O'SHANNESSY Date of judgment: 25 July 2023 Catchwords: FAMILY LAW – interim orders – application to vary a watchlist order – mother has substantiated ties to Australia – country is a hague convention country – mother wants to visit family – watchlist order due to expire soon – concerns over safety of travel to country – application allowed – order for court-based family dispute resolution conference. Legislation: Family Law Act 1975 (Cth) s 69ZL Division: Division 2 Family Law Number of paragraphs: 24 Date of hearing: 25 July 2023 Place: Melbourne The Applicant: Litigant in person The Respondent: Litigant in person ORDERS
MLC 4931 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS GILVRAY
Applicant
AND: MR MELLAND
Respondent
order made by:
JUDGE O'SHANNESSY
DATE OF ORDER:
25 JULY 2023
THE COURT ORDERS THAT:
1.The Watchlist Order made 2 June 2019 and extended on 19 February 2021 until 3 December 2023 regarding X born in 2017 (“the child”) ALSO KNOWN AS and described in the Watchlist Orders as X Gilvray be and is discharged.
2.The Mother be permitted to travel with the child to Country K from August 2023 until September 2023.
3.The Mother to do all acts and things to cause and ensure that she return the child to the Commonwealth of Australia on or before September 2023.
4.The Mother be and is permitted to use the passport for the child for the purpose of the travel to Country K as specified in these orders.
5.The Mother be and is permitted to provide a copy of these Orders AND the orders made 20 July 2023 to the Australian Passport Authorities.
FULL FDR CONFERENCE ORDER ON A DATE TO BE FIXED
6.Pursuant to Section 13C(1)(b) of the Family Law Act1975 (Cth), the parties and their legal representatives (if any) shall attend:
(a)Part 1 of the confidential Court-based Family Dispute Resolution (FDR) Conference with a Registrar (as Family Dispute Resolution Practitioner) on a date to be fixed, with each party to attend separately at times to be advised; and
(b)Part 2 of the confidential Court-based FDR Conference on a date and at a time to be fixed but not later than seven (7) days after the date referred to in order 6(a).
7.The matter shall be referred to the Executive Director – National Registrar Operations and Practice for allocation and listing of the FDR Conference dates.
Part 1 of the FDR Conference
8.Part 1 of the confidential FDR Conference shall proceed by telephone and each party must, within two (2) days of receiving notification of the dates of each part of the FDR Conference, notify the Court by email of their best contact telephone number (and include details of the file name and Court file number).
9.Not later than 4.00 pm seven (7) days prior to Part 1 of the FDR Conference, each party must:
(a)ensure that all documents required to be exchanged between parties pursuant to Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 have been exchanged;
(b)ensure that any private expert report that is relevant to the proceedings has been filed;
(c)provide to the Court by email and to the other party a single collated bundle of documents comprising:
(i)a Confidential Outline of Case (Dispute Resolution);
(ii)a detailed minute of Orders Sought;
(iii)details of any previous or current family violence orders; and
(iv)a copy of any document exchanged between the parties which is directly relevant to an issue remaining in dispute (with relevant passages highlighted).
FDR Conference
10.The parties shall otherwise comply with any other necessary order, direction or request made by the Registrar to facilitate the FDR Conference.
11.The Registrar may vacate the FDR Conference in the event:
(a)of non-attendance by either party at Part 1 of the Conference; or
(b)that pursuant to Regulation 29 of the Family Law (Family Dispute Resolution Practitioners) Regulations 2008, the Registrar is no longer satisfied that the conference is appropriate.
IT IS NOTED:
A.The dates and times fixed for all parts of the FDR Conference will be emailed to the parties and their legal practitioners, including any Independent Children’s Lawyer, at the email address noted on the Court file.
B.Documents required to be provided to the Court pursuant to these orders must be emailed to the Court as set out in the email confirming the FDR Conference dates and times.
C.For the purposes of the Family Dispute Resolution Conference, the parties are referred to s 131 of the Evidence Act 1995 (Cth) and ss 10J and 10H of the Family Law Act1975 (Cth) and to the Court’s Family Dispute Resolution Fact Sheet.
D.The Confidential Outline of Case (Dispute Resolution) is a confidential without prejudice document prepared for the purpose of the FDR Conference only. It is not to be filed or relied upon after the conclusion of the conference.
E.Part 1 of the FDR Conference is the first part of the Conference and is confidential. The other party will not be in attendance.
F.The FDR Conference is an opportunity for the parties to make a genuine effort to resolve their parenting dispute in a confidential, child focussed setting. The parties are to be resolution focussed and respectful during negotiations, and to be mindful of the financial and emotional costs associated with prolonged litigation.
G.The structure and duration of the FDR Conference will be at the discretion of the Registrar and will vary depending on the nature of the issues for consideration. Unless otherwise advised:
(a)parties and their legal representatives in short (four hour) conferences are expected to be available until at least 1.00pm and at the specific times requested by the Registrar; and
(b)parties and their legal representatives in full day conferences are expected to be available for the entirety of the day and at the specific times requested by the Registrar.
H.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 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 these particulars are included in these orders.
I.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
J.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
K.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
L.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’). These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected, citations added and an attempt has been made to make the orally delivered reasons easier to read but the substance is unchanged.
Both parties appeared in person as litigants in person. I called each party to the witness box to give evidence further to the minimal evidence each had filed to the Court. Mr Melland did not object to this but Ms Gilvray objected to Mr Melland giving further oral evidence. I ruled against her and permitted him to give further evidence.
In the matter of Gilvray and Melland, the question I must decide is whether I should vary or discharge the existing order known colloquially as a Watchlist Order. The Watchlist order concerns the applicant mother, Ms Gilvray, and the child, X.
Background
X was born in 2017 and is five years old. It is his mother’s intention that he start school in Town R next year, when he will be six.
The previous proceedings were initiated by X’s father, Mr Melland, on 13 November 2018, as I understand it, following Ms Gilvray taking X with her mother to visit Country K. Ms Gilvray was born in Country K and migrated to Australia at age 15 years. Ms Gilvray is now 36 years old and lives in regional Victoria. Her mother lives in another city in regional Victoria but not too far away. It is clear from the medical evidence provided that Ms Gilvray’s mother has some medical issues.
The existing orders dealing with overseas travel were first made on 13 June 2019 when a Watchlist order was put in place for two years. That order would have expired on 13 June 2021.
On 19 February 2021, final orders were made over Teams, and those orders provided that the parents, Ms Gilvray and Mr Melland, have equal shared parental responsibility and that X live with the mother. X was to spend time with his father in a regime that commenced with four hours of a Saturday and gradually built up until February 2022, being alternate weekend, and then, upon X turning five, being each alternate weekend from Saturday morning until Sunday evening and on special occasions and, upon X commencing primary school, for one half of school holidays.
Those orders of February 2021 were final orders, and they provided that the previous Watchlist order was to remain in full force and effect until 3 December 2023 and that if each of the parties wished to travel overseas after that time, they were to, not less than 30 days beforehand, notify the other party of:
·the countries to which they were travelling;
·the airline upon which the child will travel;
·the date of departure and return from Australia; and
·the addresses where the children would reside with telephone numbers.
The orders of 19 February 2021 in regard to the Watchlist Orders varied the orders from June 2021 so that they would cease to have effect on 3 December 2023, unless extended.
These proceedings
Ms Gilvray wishes to travel to Country K, the country where she was born, from August 2023 to September 2023. Ms Gilvray’s material has provided statements that she has return tickets. This day she has tendered in evidence a photocopy of return tickets. Ms Gilvray has twice before travelled to Country K with X and returned.
Despite those orders referred to earlier, X has not seen his father since 3 December 2022. Ms Gilvray’s position is that she wishes X to see her father, but they have been unable to reach agreement. Ms Gilvray says she is still attempting to negotiate a way for Mr Melland to see X at the moment, but they have been unable to reach agreement.
Mr Melland’s complaint is that Ms Gilvray left Melbourne and moved to regional Victoria and made the existing court orders impractical without advice to him and only told him of the move afterwards. However, it is common ground that for some time over 2021, until the end of 2022, the parents muddled through with arrangements on a regular basis for X to see his father. Further, Mr Melland has provided by and large voluntary child support payments of $100 per week to Ms Gilvray.
Mr Melland opposes the variation of the existing Watchlist Orders, that is bringing forward the date of its extinction to this time, on the basis that it is simply very dangerous to travel to Country K because of prevalent crime. He says that the civil administration of the country has deteriorated significantly in recent times and significantly since 2010. I accept his concerns are genuine. The Australian Government travel advice is to exercise a high degree of caution in Country K due to the high level of serious crime, and that is to be found at smartraveller.gov.au.
In making this decision, I must take into account X’s best interests as the primary consideration.
Mr Melland opposes the application and says that he cannot look into Ms Gilvray’s heart and be absolutely certain that she will return, but he does not point to any circumstance that would indicate anything other than Ms Gilvray having an intention to return to Australia at this point. The circumstance that there has been domestic violence alleged previously (and Mr Melland says, falsely) causes him to have circumspection of doubt about Ms Gilvray’s motivations. The parties only lived together for a couple of months and separated many months before X was born.
I propose, because I am concerned with X’s best interests, to order the parties to attend for child focused mediation with a Court Child Expert. That order is requested by Mr Melland and not opposed by Ms Gilvray, but it is not supported either. Clearly, the current orders are not working, and whilst Ms Gilvray supports Mr Melland having a relationship with X, it is just not happening at the moment, and it is my perception that the two parents need the assistance of the experts in the Court Children’s Service. At the moment, it appears that the burden and responsibility of those arrangements is falling largely on Ms Gilvray, and she is not able to get anywhere to reach agreement with Mr Melland. For those reasons, in my view, it is in Ms Gilvray’s interests and X’s interests to have that mediation. I will make that order.
Turning back to the issue of Ms Gilvray’s ties to this jurisdiction, Ms Gilvray is supported in Australia by the Supporting Parent’s Benefit, the Family Tax Benefit and the child support she receives from Mr Melland. She is a full-time homemaker and is not otherwise in employment. She lives in public housing, which, as she understands it, is permanent (subject to the directions of the public housing authority) and at an affordable cost relative to the private market. She says that she intends to continue to reside in that accommodation. She says that she intends for X to commence school in Town R, and she has identified the school where he will go.
Ms Gilvray is travelling with her mother who, she tells me, is a retired health care worker, and I accept that evidence. She says that her mother is dependent upon the Australian Government support of the disability pension, and she lives in public housing in a different regional city. Ms Gilvray understands that housing to be subject to the same conditions as her own, that is, permanent subject to the directions of the public housing authority.
Ms Gilvray has lived in Australia since she came here as a 15 year old with her parents. She completed years 10, 11 and 12 in Australia, and she undertook and completed a post graduate studies. Ms Gilvray has profound ties to Australia, and I am satisfied that she genuinely intends to return. I am satisfied that she will return using the booked tickets as she says she will.
In terms of the danger to X and his mother and grandmother whilst he is in Country K, I place considerable weight on the travel warning, that is, that a high degree of caution in Country K is needed because of the high level of serious crime. I take into account that Ms Gilvray and her mother were born in Country K and would have a greater familiarity with Country K than other tourists. The Australian Government has not seen fit to caution against travel altogether, rather, it advises a high degree of caution within Country K. There is a risk to X and his mother and his grandmother in Country K. The issue is the extent of that risk and whether the risk outweighs the benefits. I take into account that Ms Gilvray will act cautiously at all times.
The benefits to X of travelling to the country of his mother’s origin are substantial. Ms Gilvray feels a pressing need to accompany her mother to visit her mother’s siblings who are elderly and in poor health, some of whom have already passed at this time. This is a strong and pressing need for Ms Gilvray, and that pressing need impacts on X’s happiness and welfare.
Further, Country K is a party to the Hague Convention and in the event of overholding the central authority of Country K would likely undertake proceedings to compel the return of the child (subject to the provisions of the Hague Convention).
In all of those circumstances, I am satisfied that whilst there is some risk to X in Country K, it is not an unacceptable risk and that the benefits of that travel to X outweigh the risks. That is not a guarantee to anyone, but that is my decision, with the burden and responsibility of X’s welfare, doing the best I can on the evidence I have.
Those are my reasons.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 25 July 2023
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