Grainger & Grainger
[2023] FedCFamC1F 490
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Grainger & Grainger [2023] FedCFamC1F 490
File number(s): LEC 216 of 2022 Judgment of: BAUMANN J Date of judgment: 29 March 2023 Catchwords: FAMILY LAW – PARENTING – Where the mother sought leave to remove child from the Commonwealth of Australia for the purpose of attending the funeral of a relative – Where the child has not spent substantial time with the father during her life and therefore not being a suitable candidate to care for the child – Where the mother has unilaterally removed the child to the United Kingdom on a prior occasion – Where the High Court of the United Kingdom ordered the child be returned to Australia – Where the mother is prepared to deposit $20,000 into trust as security – Where the child has specific care requirements – Orders made permitting the mother and child to return to the United Kingdom for a short period of time to allow for participation in funeral ceremonies Legislation: Family Law Act 1975 (Cth) s 60CC Cases cited: Banks & Banks (2015) FLC 93-637
Grainger & Grainger [2019] FamCA 56)
Division: Division 1 First Instance Number of paragraphs: 46 Date of hearing: 29 March 2023 Place: Brisbane Counsel for the Applicant: Mr Cooper Solicitor for the Applicant: Hodgson Lawyers Counsel for the Respondent: Mr Jackson Solicitor for the Respondent: Justice Family Lawyers Sydney Solicitor for the Independent Children’s Lawyer: Holmes Donnelly & Co Solicitors ORDERS
LEC 216 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GRAINGER
Applicant
AND: MS GRAINGER
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BAUMANN J
DATE OF ORDER:
29 MARCH 2023
UPON THE UNDERTAKING OF THE RESPONDENT MOTHER THAT SHE WILL:
A.Do all acts and things necessary to facilitate the child, L born 2009 (“the child”) being returned to the Commonwealth of Australia before 5.00pm on 17 April 2023 local Sydney time.
B.Will not do any act or thing to initiate, participate or otherwise engage in, directly or indirectly, any type of proceedings or part thereof, including inquiry, examination and/or legal proceedings whether civil or criminal, in relation to the child in any jurisdiction other than these proceedings in the Australian jurisdiction.
C.Will not facilitate, support or otherwise allow by any means the child to do any act or thing to initiate, participate or otherwise engage in, directly or indirectly, any type of proceedings or part thereof, including inquiry, examination and/or legal proceedings whether civil or criminal, any jurisdiction other than these proceedings in the Australian jurisdiction.
THE COURT ORDERS:
1.That the mother be permitted to remove the child from the Commonwealth of Australia only as set out within these Orders.
2.That for the purposes of s 65Y(2) of the Family Law Act 1975 (Cth), the mother be permitted to travel with the child from the date of these Orders until 5.00pm on 17 April 2023 (AEST) time for the purposes of travel to the United Kingdom.
3.That for the purposes of Order 2 hereof, and only for the period of the date of these Orders until 5.00pm (AEST) on 17 April 2023:
(a)Order 2 and Order 3 of the Orders dated 22 July 2022 be suspended; and
(b)the Australian Federal Police are hereby requested to remove the child’s name from the Airport Watch List.
4.That the mother be permitted to travel in accordance with Order 2 hereof provided that:
(a)the mother causes the sum of twenty thousand dollars (AUD$20,000) to be deposited into the Trust Account of the legal representatives of the Applicant father, namely the Hodgson Lawyers Trust Account, and the father’s legal representative will notify the legal representatives of the parties in writing upon the mother’s compliance with this Order; and
(b)the mother provide a copy of the fully paid airline ticket with departure dates and return dates for the child, for dates within the period of Order 2, to be provided to the father’s legal representatives and the Independent Children’s Lawyer; and
(c)the mother file and serve an Undertaking with the Court on the terms provided for in this Order.
(d)the mother do all acts and things necessary to return the child to the Commonwealth of Australia before conclusion of time at Order 2 hereof.
5.That should the child not be returned to the Commonwealth of Australia by 5.00pm (AEST) on 17 April 2023, the father and the Independent Children’s Lawyer have liberty to re-list this matter urgently before the Honourable Justice Baumann to determine the consequences for the mother for the non-return of the child.
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 the pseudonym Grainger & Grainger has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J:
I provide these ex tempore Reasons commencing at 6.22pm Queensland time after hearing submissions from Mr Jackson on behalf of the mother and Mr Cooper on behalf of the father and Mr Holmes who is Independent Children’s Lawyer.
I rely upon the exchanges reflected in the transcript for what has been an urgent, truncated hearing in this matter.
The essential issue for the Court to decide is whether it is in the best interests of this child L born 2009 to travel with her mother to the United Kingdom so that the mother can, and to an extent L can, grieve and/or celebrate the life of the mother’s relative who died in the United Kingdom in 2023.
The mother brought an urgent application which has been listed before me, I suspect because of my familiarity with part of the history of this matter. That familiarity is best demonstrated by the Reasons for Judgment, where I set out a history of the matter up until the time of the trial before me in August 2018 (Grainger & Grainger [2019] FamCA 56).
The effect of that Order was, for the reasons expressed in that Judgment, that L was to live with the mother; the mother is to have sole parental responsibility, and there were no orders made for prescribed physical or telephone time between the child and the father.
It is common ground that the father, as he was perfectly entitled to do, launched an appeal in respect of that decision which was dismissed by the Full Court on 14 August 2019. The background to the current dispute can be summarised as follows.
In mid-2021, the mother says she informed the father of an intention to travel to the United Kingdom, although there is evidence that the father may not have received that notice of intention. Nonetheless, pursuant to Order 9 made by the Court, the mother was permitted to remove the child from the Commonwealth of Australia for a holiday and for the purpose of overseas travel the mother had parental responsibility to make application to renew the child’s passport. The mother was required, in compliance with the Orders, to provide the father details of the intended travel overseas.
The mother left and travelled, as I say, to the United Kingdom in mid-2021. There was, as a result of my Orders, no airport watch restraint on the child leaving the country. Approximately five weeks after the mother left Australia, the mother had expressed an intention to the father that she believes it was in the child’s best interests for the child to remain living in the United Kingdom.
The father, in late 2021, ensured that proceedings were commenced under the Hague Convention in the United Kingdom. In early 2022, the High Court in the United Kingdom, ordered the child’s return to Australia. The reasons for judgment for the judge exercising discretion in that way is before the Court and I have read them.
The mother was entitled to appeal, like any litigant, that decision, but only with leave, and that leave was refused by the United Kingdom Court of Appeal in early 2022.
A further almost two months ensued before the mother and the child returned to Australia in mid-2022, some 11 months after the mother had wrongfully retained the child in the United Kingdom by entering that country in mid-2021.
The father, by this stage, had on 25 April 2022 filed an application to the Court seeking to vary the orders in Australia. The mother, as early as 5 May 2022 and before she even returned to Australia (but after the Court of Appeal had refused her leave), filed an application seeking relocation to the United Kingdom which she has confirmed in her response to the father’s application for variation to current parenting Orders.
It is not necessary to deal with some of the other aspects of the case management of this matter, save to note that the proceedings that of course commenced in Division 2 were transferred by a Senior Judicial Registrar on 22 July 2022 to Division 1; Mr Holmes, who had been the Independent Children’s Lawyer in the first trial before me was appointed as the Independent Children’s Lawyer on 4 August 2022; and on 1 November 2022, a Judicial Registrar made an order for the appointment of Dr J (the expert who had prepared a report for the trial before me) to prepare a further family report.
There had been further applications and responses filed in the Court including enforcement of property Orders made by Tree J and application seeking to vary orders, made under section 79 of the Family Law Act 1975 (Cth).
The catalyst for the late sitting today has been the fact that in 2023, a relative of the mother has passed away. On 21 March 2023, the mother filed an Application in a Case seeking, in effect, permission to travel to the United Kingdom with the child for one month. She seeks and offered that the Court accept security being placed by cash in Australia in the sum of $20,000, to give some comfort, she would say, to the father’s concerns that she may not return on this second occasion.
On 28 March 2023, which is yesterday, and again, this morning, the father has filed material, mostly prepared by himself, but he was able to retain solicitors and counsel for submissions that I heard tonight.
He opposes the child being permitted to go to the United Kingdom for the purposes of the ceremonies and events arising from the death of the mother’s relative. It is trite to say that in the substantive proceedings now pending before the Court, he opposes the mother relocating to the United Kingdom with L.
However, sensibly, he says that as an alternative, if the Court permits the mother to travel to the United Kingdom with the child, then he seeks that there be a security of $120,000 and that the travel be no longer than 14 days.
The Court is being asked to make a parenting order. Like all parenting orders, it is the best interests of the child which are the paramount consideration. As decisions like Banks & Banks (2015) FLC 93-637 makes clear, in any interim proceedings for parenting orders, a Court should concentrate on those factors under section 60CC(2) and 60CC(3) of the Family Law Act 1975 (Cth) (“the Act”) which are most relevant. It is not necessary for the Court to deal with all of the additional and primary considerations, but more importantly, the parties acknowledge through their Counsel who assisted me greatly this afternoon and tonight, that the Court is not in a position to make findings of disputed facts.
I do not propose in these ex tempore reasons to record the written submissions and oral submissions received tonight. I have heard them and considered them as the transcript attests.
For the reasons which I will now explain, I propose to permit the mother to remove the child from Australia to travel to the United Kingdom provided that she return to Australia by 5.00pm Sydney time on 17 April 2023.
I regard that, on the evidence, as sufficient time for the mother and the child to participate in what are still unspecified rituals, ceremonies or events involving the extended maternal family, to celebrate the life and passing of the mother’s relative.
In my view, the evidence is not that strong that L had a strong bond or relationship with the relative. There is no evidence before me that from the time of the Orders I made, or in fact, before then, until the events of mid-2021 when the mother left Australia with L that the child actually spent any time in the United Kingdom developing a relationship with the extended maternal family in that country.
I accept that the maternal grandmother resides in Australia and that although Mr Jackson described the relationship between the maternal grandmother and the deceased relative as perhaps somewhat different, noting the distance they lived apart, he says his instructions were they had a continuing relationship of some form.
Certainly, the maternal grandmother wishes also to accompany L and the mother to the United Kingdom to celebrate the life of her late relative. I say that I cannot be satisfied about the extent of the bond because, on the face of it, the only real time the child has had any physical time with the mother’s relative for most of her life was for the period of about 11 months when she remained in the United Kingdom when the mother wrongfully retained her in that country.
In answer to the question about why the mother cannot go to the United Kingdom herself and leave the child in Australia, the answer seems to be that the child and the mother’s relationship is of such a quality that the mother says the child will not cope with being absent from her mother for a great period of time. I cannot make a fulsome assessment of that.
However, I note the child is home schooled; that the child has been described by Dr BB, her treating therapist, to some degree as although a delightful child, a child who is and has been diagnosed on the spectrum for autism.
Certainly at the trial that I conducted, there was a very close bond between the mother and the child. The mother says through her counsel that if the mother was to go to the United Kingdom and the child was not permitted to go, then not only would the mother not go, but more importantly, there would be no one to care for the child if the mother is not in the country. This seems to be because the mother and the maternal grandmother had decided that they must go for their understandable reasons to the United Kingdom and that as a result, there was no option but for the child to go.
That does have a hint of the adult wishes and needs not being subservient to the best interests of the child, but in this regard, that might be too harsh a decision to make on an interim basis, and I make no such finding. I do express a concern, however, which I raised with Mr Jackson as the transcript would reflect.
In my view, the period of time that I will permit the child be out of the country is more than sufficient in the absence of any other evidence, for appropriate recognition to be given to the life of the mother’s relative in the usual way after a passing.
The Independent Children’s Lawyer, Mr Holmes, who has been in the matter for a long time, and Mr Cooper on behalf of the father, say the history of this matter reveals that there is a high risk that the mother will not return, and that a $20,000 deposit in this country is not enough incentive for her to do so.
In that regard, there is no evidence before me, particularly where there are still property orders that have not been put into effect (that are now the subject of other proceedings) that the mother has the capacity to find $120,000 by way of security.
I regard such an amount as calculated perhaps with the best of estimates in relation to potential United Kingdom legal fees should the mother not return, but which would be effectively an impediment to any travel occurring.
Noting that on the last occasion, the father had to wait for funding or reimbursement of funding in terms of air travel and the like, the difference in this case is if the mother did not return, the security needs, whatever level it is, would be paid to him immediately.
The amount of security is a somewhat arbitrary consideration, but in my view, the amount offered, of $20,000 is proper and I would order that sum to be deposited.
I raised during the course of submissions and with a view to assuaging some of the concerns the father has about the mother’s past conduct (which I well understand) and her previous attempt to remain in the United Kingdom without proper authority, that the mother should give an undertaking to this Court that in effect, she will not commence any proceedings in the Courts of United Kingdom seeking to engage those Courts in making orders restraining the child from leaving the United Kingdom.
It is clear that the purpose of the trip is not a holiday but, in effect, a unique and sadly, once in a lifetime event in relation to the mother’s relative. I cannot lose sight of the fact that that is the event that causes me to give permission in the way that I intend to do.
Mr Holmes raised some concerns about how, under the United Kingdom system, there is a capacity for a child to retain independent advisors to appear before the Court and assert claims on behalf of the child. He seeks that the undertaking be extended to an undertaking by the mother not to, in any way, facilitate, support, or engage in a process of seeking representation for the child in the United Kingdom. I am prepared to extend the undertaking to that level.
In answer to the clear concern that an undertaking given to an Australian Court will of itself be unenforceable, one would think, in the United Kingdom Courts, I say this. Although Mr Holmes says that my description of any second likely success in a Hague convention was too colourfully described as “a slam dunk”, it is hard to see on the reasons that I have read of the Judge in the United Kingdom ordering the return of the child and on the current status of the new applications in this country, how the mother could be seen to have virtually any prospects of convincing the United Kingdom Court about not returning the child to the country if she again wrongfully detains the child.
As I say, the proceedings of course once the appeal process was done, took some months. But more importantly, as the mother says, she accepts that an attempt in the same way to remain in the United Kingdom would likely obtain the same result from the United Kingdom courts under the convention. I take the view that if the mother did not return, she would ultimately, as quickly as the process in the United Kingdom can permit, be returning to Australia with the child.
In understanding the Reasons I have delivered today and the discretion I have exercised in the mother’s favour based on her submissions made today, a failure to comply with an order of this Court, the undertaking which she will give, might be seen as a very significant issue, in the mother’s ultimate application, to relocate to the United Kingdom permanently. That matter is soon to be the subject of a further family report and will no doubt be determined in the passage of time by the court on a final basis.
The mother will be required, before she leaves Australia, to deposit $20,000. I am going to say, now that the father has a lawyer, unless I can be persuaded otherwise, the funds should be deposited into the trust account of the solicitors now on the record for the father, Hodgson Lawyers
The mother will have to have filed an undertaking, the terms of which can be perfected during the course of tomorrow and filed in the Court in those terms, before she leaves Australia. Further, she will need to be able to produce to the Independent Children’s Lawyer and the father evidence of a return flight for the child and herself fully paid for showing dates of departure and return before she will be permitted to leave the country.
The Orders should also provide that if the mother fails to return in accordance with the Orders by 17 April 2023, that the matter can be relisted before me urgently to deal with the consequences of her failure which of course would involve permitting the funds which had been deposited to his solicitor’s trust account, to be released to the father.
Now, finally, it is not intended by me to play a further active role in these proceedings. I note that there has at least been an application earlier filed that the proceedings be heard in Sydney. It is not clear whether that application has ever been dealt with. As I say, it seems to me the application was listed before me because of my familiarity with the matter and my willingness to hear it after a busy list because of the urgency.
Unless there is anything further, I note for the sake of the record that it is now 6.46 pm.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 21 June 2023
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