Grove and Renshaw

[2016] FCCA 2251

FEDERAL CIRCUIT COURT OF AUSTRALIA

GROVE & RENSHAW [2016] FCCA 2251

Catchwords:
FAMILY LAW – International travel application – small child – primary carer does not consent to travel.

Applicant: MR GROVE

Respondent: MS RENSHAW

File Number: SYC 3221 of 2016

Judgment of: Judge Henderson

Hearing date: 2 June 2016

Date of Last Submission: 2 June 2016

Delivered at: Sydney

Delivered on: 2 June 2016

REPRESENTATION

Solicitors for the Applicant: Somerville Legal

Counsel for the Respondent: Mr Stapleton of Counsel

Solicitors for the Respondent: Meredith Saayman Lawyers

ORDERS

1. The father’s application is dismissed insofar as it relates to overseas travel.

2. The matter be listed on 13 September 2016 at 9:30am for further directions.

3. If the matter has not resolved the father is to reply to the mother’s response at least 7 days prior to the next court date.

4. The mother’s costs of today be reserved.

THE COURT NOTES THAT:

1. The parents are undergoing Family Dispute Resolution in an attempt to resolve all matters in dispute.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3221 of 2016

MR GROVE

Applicant

And

MS RENSHAW

Respondent

REASONS FOR JUDGMENT

1. The matter of Grove & Renshaw is an application by the father seeking to take the parties’ young daughter X, who is aged three years (omitted) to (country omitted) 10 days and 10 nights. I am not sure how the flights would work out with nights and days.

2. The application is to visit (country omitted) to meet with, and spend time with the paternal family, but in particular the timing is due to the unfortunate serious illness of the child’s grandfather, the father’s stepfather, who the father is very close to, and with whom the child had had regular Skype and other communication, and knows him well. It is a great sadness that this gentleman is not well, because it is clear he is a very important person to the father.

3. The material I have read, which is the father’s two affidavits, one filed 24 May 2016 and one 1 June 2016, and the mother’s affidavit filed 30 May 2016, and the affidavit of the paternal grandmother, which was not particularly helpful in this case make it clear that the mother had, when this issue was raised by the father earlier this year, consented to the father taking the child overseas subject to various conditions, but most particularly subject to “unless she receives some legal advice to the contrary”.

4. Now, one of the important conditions the mother sought has not yet been dealt with by the parties. That is she sought they have some form of parenting orders in place. They apparently have not been able to agree to that. The mother has had legal advice apparently, and I am in no way wanting to know what that legal advice is and has since changed her mind on the prior agreement for travel which was subject to conditions. She has set out quite clearly in her affidavit at paragraph 114 what her reasons for objection are:

   “a. X is just a little under (omitted) years old. She has never been away from me for more than 3 consecutive nights.

   b. I am not comfortable with X travelling on a long haul international flight with her present bowel condition;”

5. There is no issue about the father being able to deal with her bowel condition on land, it is the 24 hour trip in the plane that the mother is referring to. The mother is concerned that, for reasons which may have to be determined at a final hearing, the father led her to believe that he was visiting his ill stepfather and his parents in (country omitted) in March 2016, as he had sent the mother an email with the subject line: (country omitted) Holiday as set out in annexure E of her affidavit.

   “Good to hear X is good I’m happy to hear this…

   Unfortunately, I’m away tomorrow, taking mum and Mr T away for 2 nights so won’t be able to face time…

   Had a bit of change of Mr T’s treatment, all up in the air :( bless him.

   So I diffused the situation and am treating them to go away.

   It’s doom and gloom here so want to cheer them up…”

6. The mother subsequently discovered that the father had in fact been in (country omitted) at that time with friends, so one would wonder why he perpetrated that subterfuge, if I could use that word. I am not trying to be critical however he did not let the mother know that he was in (country omitted), and not in (country omitted). Possibly this has done some damage to their hitherto fairly amicable and trustworthy relationship, I fear, because two things have happened for the mother subsequent to that.

7. The first is she would question how seriously ill the stepfather is, if the father went to (country omitted) rather than visiting his father in March, as he indicated to her he would. She says in her email in response to him:

   “You lie to me about things that don’t matter to me, so how can I trust your telling me the truth about things that really do matter to me (ie X)”

8. Unfortunately the father’s conduct at that time, for whatever reason, has caused a breach in what had been a hitherto pretty reasonable period in co-parenting arrangement.

9. This child is young. She has only ever spent three consecutive nights in her father’s care. She spends regular time with him. She is progressing well. She is clearly an emotionally robust child, having excellent parenting, and her father and her relationship is strong, and attached, and will continue to grow and develop as she ages.

10. Unfortunately, these matters are now weighing on the mother’s mind, and secondly the mother is also concerned that the father may not return from (country omitted) with the child, and stay in (country omitted). I am less concerned about that. It is fairly clear to me Australia is his home, this is where his job is, this is where he wants to be. However, the seeds of doubt have been sown. Unfortunately, only time will perhaps heal that, and allow the mother to recover from what she says is an unnecessary subterfuge.

11. Any order I make about a child must be an order in a child’s best interests. Now, it is axiomatic international travel, travelling overseas, seeing family, seeing other sights is enriching and beneficial to everyone, including children. However, this is a child who is aged three years and five months. The primary carer is her mother and she has never been away from her mother for more than three consecutive nights. Yet the father asserts that she would be fine and he would be able to deal with any issues and that the child would not suffer stress, grief, or loss, by being away from her mother and with him for 10 days including a lengthy international flight to and from Australia, which can take 24 hours each way.

12. The mother is most concerned about her daughter’s emotional health, and her capacity to be separated from her for such a lengthy period of time. Although I do not see that the father is lacking in capacity to parent his child, or comfort his child, or deal with her distress, there is a lingering doubt that I share with the mother that the father may not be able to completely deal with this grief, and that this may cause this child some real emotional long term or perhaps only short term risk of harm, and cause some separation anxieties and behaviour regression, that these parents have never seen in a child.

13. Given that the trip is really to see a dying, and beloved grandparent I am struggling to see how such a trip can be an order in the best interest of a three and a half year old child, and I favour the mother’s application that the child not be permitted to travel with her father.

14. I note the parents are undergoing Family Dispute Resolution in an endeavour direction agreement as to parenting of their daughter. If the parents are unable to reach an agreement, the father is to file an amended application.

I certify that the preceding fourteen (16) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date: 5 September 2016