Heinrichs and Heinrichs

[2019] FamCA 939

FAMILY COURT OF AUSTRALIA

HEINRICHS & HEINRICHS [2019] FamCA 939

FAMILY LAW – Application by the father seeking permission for international travel to the United Kingdom – Hague convention country – child aged 15 –Application dismissed.

Family Law Act 1975 (Cth) s 61DA(3)

Kuebler & Kuebler (1978) FLC 90-434
Line & Line (1997) FLC 92-729

APPLICANT: Mr Heinrichs

RESPONDENT: Ms Heinrichs

INDEPENDENT CHILDREN’S LAWYER: Ark Law Lawyers

FILE NUMBER: SYC 5659 of 2018

DATE DELIVERED: 25 November 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Harper J

HEARING DATE: 25 November 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Applicant in person

SOLICITOR FOR THE RESPONDENT: Respondent in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Rutkowska

Orders

1. The Application of the Applicant Father filed on 4 September 2019 be dismissed.

Mediation

1. The parties take all necessary steps to engage in mediation organised by the Independent Children’s Lawyer noting that such mediation is to be conducted by telephone.

2. The parties take all necessary steps to comply with any directions and requests of the Independent Children’s Lawyer and any mediator made for the purposes of the mediation.

Family Report

1. Pursuant to s 62G(2) of the Family Law Act 1975 (Cth) (“the Act”), the parties and the children of the relationship attend upon a Family Consultant nominated by the Child Dispute Section in this Registry on a date and at times to be advised for the purposes of the preparation of a Family Report addressing the issues identified in s 60CC of the Act.

2. The parties send copies of all of their court documents to the Family Consultant within three (3) days of being requested to do so by the Family Consultant.

3. For the purpose of completing a Family Report, the Family Consultant is granted leave to inspect the court file and all documents produced on subpoena (once leave to inspect has been granted to at least one other party in the matter).

4. I DIRECT that the parties themselves confirm with the Family Consultant no later than ten (10) days prior to the scheduled interviews that the interviews will proceed on the dates allocated.

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 Heinrichs & Heinrichs 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: SYC5659/2018

Mr Heinrichs

Applicant

And

Ms Heinrichs

Respondent

EX TEMPORE REASONS FOR JUDGMENT

A.These reasons were delivered ex tempore and corrected for literal and grammatical errors.

1. In proceedings SYC5659/2018 I have before me an application by the applicant father seeking a dispensation from the Court to permit travel to the United Kingdom by him with the child, Y, who is the subject of the proceedings. Y is currently 15 and will turn 16 in 2020. The respondent mother and the applicant father were both self-represented before me.  I had the assistance of Ms Rutkowska as the Independent Children’s Lawyer. 

2. The father’s proposal is that he be permitted to travel with Y to the United Kingdom between the 2 and 24 January 2020. 

3. It is important to note here that in a detailed judgment delivered on 13 February 2019, His Honour Judge Kemp in the Federal Circuit Court of Australia made a number of orders concerning the children subject of the proceedings including permitting the father to travel with Y to the United Kingdom subject to certain conditions including the deposit by the father of a security of $5,000,000.  There was also an order made requiring the mother to do all things necessary to enable Y to obtain an Australian passport and the father to pay all costs of such passports.

4. The background of the proceedings is very troubling. It is quite clear there is high conflict between all members of the family. The parents are in high conflict.  At the moment Y lives with his father, and the other child, the subject of the proceedings, X, who is 12, lives with her mother. There is not only great tension between the parents but there is also great tension, I am told, between the children and at the moment there is not only considerable tension but possible estrangement between Y and his mother. The situation in which both the children find themselves is extremely reprehensible. Although the father had filed affidavits in the proceedings on 4 June 2019 and 4 September 2018 there was no updated affidavit before me in support of his application for travel. 

5. The father made numerous submissions from the bar table of a factual nature which I have endeavoured to take account of as best I could follow them. His argument in support of travel to the United Kingdom is that the paternal grandparents live there, that his father is ailing, and that it is in the best interests of Y to spend time with his extended family in the United Kingdom. Both the mother and the father are English I was told. In support of his application in January 2019 the father offered a security of $5,000,000. However, the father offered no security in support of the present application in November 2019.

6. His reason for failing to do so lay in what he claims to be his parlous financial situation. His parlous financial situation is demonstrated by the fact that not only the father, but the mother as well, have been unable to find sufficient money to pay for the preparation of a Single Expert’s report which was ordered by orders made in June 2019 by consent.

7. There has been no order allocating any parental responsibility so far in these proceedings. I am satisfied that the presumption of equal shared parental responsibility should not be applied at this interim stage pursuant to s 61DA(3) of the Family Law Act 1975 (Cth).

8. I take account of the need to follow the usual statutory pathway to determine the best interests of the children, and in particular, I apply the usual principles in relation to international travel as set out by the Full Court of the Family Court in Kuebler & Kuebler (1978) FLC 90-434 and Line & Line (1997) FLC 92-729.

9. In particular, I have given consideration to the length of the proposed stay, the bona fides of the application, the effect on Y of any deprivation of access to his mother, the threats to the welfare of the child by the circumstances of the proposed environment in the United Kingdom, and the degree of satisfaction which I feel about the father’s promise to return to the jurisdiction of Australia at the end of the trip. 

10. I also take account of what was said by the Full Court in the decision of Line & Line (supra) that the purpose of providing security for travel is to provide a sum which will realistically entice a person removing a child to return to Australia, and to provide an adequate sum for the party left behind to take action and proceedings in Australia and overseas in an endeavour to obtain the return of the child. Whilst those are the applicable legal principles, the facts of this case are somewhat different to many cases involving international travel in the sense that the child in question, Y, is close to turning 16 years of age. 

11. He is, as I have already noted, estranged from his mother so the purpose of her taking proceedings for him to return to Australia is somewhat attenuated in the event that the father did travel and did not return with the child. Having said that, Y is not yet 16 and must complete his schooling in accordance with the laws of Australia and it is in his best interests to do so. If he did not return to Australia after the trip proposed by the father, his schooling would, on any view, be seriously interrupted and the impact upon this as he seeks to chart his future course through life is likely to be adverse.

12. In considering the present application for travel I have taken account of some of the facts surrounding the earlier orders permitting travel. The father told me from the bar table that he, through his current partner, provided security of $5,000,000 for travel but that this travel was derailed because the mother failed to execute appropriate documents for a passport. Whilst the father did not give any evidence on oath about this, from what he told me it appears that a banking draft for $5,000,000 was provided by his partner but was subsequently withdrawn. The father says this was on the basis of the mother’s failure to execute passport documents. The mother for her part asserts that she was provided with documents but was told not to fill in anything apart from her signature.

13. Somewhat remarkably, the father also told me that subsequent to this, his father in the United Kingdom has managed to obtain a passport for Y and sent or chartered a private jet in Australia to take Y to the United Kingdom. I was told this jet was waiting at an aerodrome at Suburb S, and that Y was about to board the place in the possession of what was called a travel document provided by the Home Office of the United Kingdom, a copy of which I have not seen.  At the last minute it appears that Y was taken off this private jet and no travel to the United Kingdom took place.

14. I note here that the father readily conceded before me that he has been a volatile personality in the recent past, but contends that he has calmed down and improved. My own observation of the father in the courtroom suggested that there exists some residual volatility in his personality which may be a result of his domestic circumstances or the extreme aggravation he felt upon the failure of his marriage. Nonetheless, it was necessary for the Court to counsel the father to calm down and conduct himself with appropriate decorum at several points during the hearing.

15. The conclusion that I draw from the evidence concerning the failure to maintain any security for travel earlier this year, the provision of a private jet by the paternal grandfather, and the possible existence of a passport or some travel document issued by the Home Office of the United Kingdom, together with the father’s observed volatility, is that there is a real risk that in the future there will be a failure to properly adhere to any orders made by the Court in relation to travel.

16. This leads me to consider the mother’s contention that the father may be a flight risk. The mother contended that the father has family in the United Kingdom, and that appeared to be undisputed. She contended that there are a number of criminal charges pending against the father, that he owes outstanding tax, and has failed to pay child support, and those provide reasons why he may wish to travel to the United Kingdom and remain there. It is very difficult for me to form a view about the veracity of those contentions. Some of all of them may or may not be true. However there is no doubt that the father does have extended family in the United Kingdom.

17. For his part, the father argued that his life was in Australia, that he has a new partner here who was prepared to provide security of $5,000.000, and that he is a manager of a business in Sydney.  Again, the veracity of these assertions is very difficult for me to determine in this haphazardly constituted hearing, dealt with on an urgent basis. However, the fact that the father has been unprepared to provide any security or proffer any security (apart from his dog) in the hearing before me is a source of some concern, bearing in mind that the provision of security is a matter which has always been a requirement, even for parties who are proposing to travel to countries who are signatories to the Convention on the Civil Aspects of International Child Abduction, otherwise known as the Hague Convention.

18. In circumstances where the father went from offering security of $5,000,000 in January of 2019 to offering nothing in November 2019, I am again driven to the conclusion that he has not satisfied me to the requisite standard that he is likely to adhere to his responsibilities to return with the child at the end of his proposed trip, in circumstances where he changes his mind whilst away and decides remaining in the United Kingdom is a preferable course. For those reasons I am not persuaded that it is in the best interests of Y to permit international travel at this point in time. 

19. I think it is much more in the interests of both Y and his sister for steps to be taken to try and at least isolate and resolve some of the significant issues of conflict between the parties, and that this should be the priority and the next step that is taken in the proceedings. Ms Rutkowska has made the suggestion, which ultimately seemed to be embraced at least by the father, that some mediation could take place by telephone, a telephone mediation being the best manner in which to protect against any concerns about volatile or even violent interactions between the parents. 

20. I am persuaded that that is the appropriate next step, and that before any international travel can be undertaken by ordering the removal of Y’s name from the Airport Watchlist or by express permission of the Court, that step should be undertaken. The Independent Children’s Lawyer also informed me that the parties have so far only attended a Child Inclusive Conference. There is no other expert evidence, and in light of the inability of both parties to pay for the Single Expert which they agreed to by consent orders in June of 2019, the only other alternative is for the standard order to be made for the parties to be referred to the Court’s resources for the purpose of the preparation of a Family Report. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Harper delivered on 25 November 2019.

Associate: 

Date:  6 December 2019