HEINRICHS & HEINRICHS
[2019] FCCA 286
•13 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HEINRICHS & HEINRICHS | [2019] FCCA 286 |
| Catchwords: FAMILY LAW – Travel overseas – Hague convention country – schooling – transfer to Family Court of Australia. |
| Legislation: Family Law Act 1975 (Cth) |
| Cases cited: Goode & Goode [2006] FamCA 1346 |
| Applicant: | MR HEINRICHS |
| Respondent: | MS HEINRICHS |
| File Number: | SYC 5659 of 2018 |
| Judgment of: | Judge Kemp |
| Hearing date: | 21 January 2019 |
| Date of Last Submission: | 21 January 2019 |
| Delivered at: | Sydney |
| Delivered on: | 13 February 2019 |
REPRESENTATION
| Applicant: | Self-represented |
| Counsel for the Respondent: | Mr Gutteres |
| Solicitors for the Respondent: | Lander & Rogers |
| Counsel for the Independent Children's Lawyer: | Ms Reynolds |
| Solicitors for the Independent Children's Lawyer: | Kathryn Renshall Lawyers |
THE COURT ORDERS, PENDING FURTHER ORDER, THAT:
By consent, the mother be granted leave for short service of her Further Amended Response and the interim application be listed on an urgent basis.
By consent, all times be abridged to enable the urgent hearing of the interim applications.
These orders are in addition to the interim orders made on 1 November 2018 which continue to stand.
By consent, [X], born … 2007, (“[X]”) live with the mother.
By consent, the father be restrained:
(a)from relocating the residence of [Y], born … 2004, (“[Y]”) from the Sydney metropolitan area; and
(b)Attending upon Suburb A Public School without the prior written consent of the mother.
By consent, until further order, the father (also known as [Mr Heinrichs] and [Mr Heinrichs] and [Mr Heinrichs]) born … 1974 and his servants and/or agents be hereby restrained from removing or attempting to remove [X] from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watchlist until the Court orders its removal.
By consent, that within fourteen (14) days, the father shall deliver any passports obtained in the name of [Y], including but not limited to passports obtained in Ireland, the United Kingdom and Australia to the Sydney Registry of the Federal Circuit Court of Australia and those passports shall be retained by the Federal Circuit Court of Australia, pending further order or written agreement of the parties.
By consent, each party be restrained from:
(a)Denigrating the other party in the presence and/or hearing of the said children and permitting any third party from doing so;
(b)Discussing these proceedings in the presence and/or hearing of the said children or showing the said children any document connected with these proceedings; and
(c)Involving the said children in adult issues.
By consent, pursuant to section 91B of the Family Law Act 1975, the Department of Family and Community Services (“FACS”) be requested to urgently intervene in these proceedings.
By consent, the Independent Children's Lawyer be granted leave to provide a copy of the mother's Affidavit and the Affidavit of Senior Constable B to FACS to assist in determining whether it should intervene in these proceedings.
[Y]’s name be removed from the Airport Watchlist in force at all points of arrival and departure in the Commonwealth of Australia
The father be permitted to travel with [Y] to the United Kingdom on the following conditions:
(a)[Y] is to be absent from Australia for no more than 21 days;
(b)The father is to provide the mother and the Independent Children’s Lawyer with a full itinerary 7 days, prior to the travel, including details of all addresses at which [Y] will reside and contact phone numbers for the period he is outside Australia;
(c)The father is to provide the mother with a copy of [Y]’s return plane ticket 7 days prior to travel;
(d)The father is to deposit security of $5,000,000.00 prior to [Y]’s travel and to place such funds in a bank account nominated by the Court;
(e)In the event that [Y] does not return to Australia on the date shown on the return plane ticket, the security of $5,000,000.00 shall be released by the Court to the mother to enable her to pursue the return of [Y] to Australia; and
(f)The father is only authorised by this order to take [Y] to the United Kingdom on one occasion.
In the event that the paternal grandfather, Mr C Heinrichs, should pass away, the father is permitted to take [Y] to the United Kingdom, for the purposes of attending the paternal grandfather’s funeral, in addition to the travel authorised by order 12 above, subject to the following conditions:
(a)[Y] is to be absent from Australia for no more than 21 days;
(b)The father is to provide the mother and the Independent Children’s Lawyer with a full itinerary 7 days, prior to the travel, including details of all addresses at which [Y] will reside and contact phone numbers for the period he is outside Australia;
(c)The father is to provide the mother with a copy of [Y]’s return plane ticket 7 days prior to travel;
(d)The father is to deposit security of $5,000,000.00 prior to [Y]’s travel and to place such funds in a bank account nominated by the Court; and
(e)In the event that [Y] does not return to Australia on the date shown on the return plane ticket, the security of $5,000,000.00 shall be released by the Court to the mother to enable her to pursue the return of [Y] to Australia.
The mother is to do all things necessary to enable [Y] to obtain an Australian passport and the father is to pay all costs of such passports.
The father is permitted to change [Y]’s school to either Suburb D Public High School or E School, Suburb F, subject to the following:
(a)By consent, the father is to provide the mother’s solicitor and the Independent Children’s Lawyer with a copy of the lease of premises in the Suburb F/Suburb D area where he proposes to reside with [Y], or a contract for purchase of a residence in that area.
(b)By consent, once there is a change of school from Suburb G High School there cannot be another change of school without agreement or further order of the Court.
(c)The father is to provide the mother with a completed enrolment form for the mother to sign.
The parties are to forthwith do all things reasonably necessary to enable both [Y] and [X] to spend time together in accordance with the children’s wishes and at a time and place as agreed to between the parties in writing.
The matter be transferred to the Family Court of Australia before a Registrar on 26 February 2019 at 10.30am and any reference in these orders to “Court” or “Federal Circuit Court of Australia” will stand as a reference to the “Family Court of Australia”.
No further documents are to be filed in this Court.
IT IS NOTED that publication of this judgment under the pseudonym Heinrichs & Heinrichs is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 5659 of 2018
| MR HEINRICHS |
Applicant
And
| MS HEINRICHS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by the applicant father (“the father”) as, initially, set out in his Application in a Case filed on 19 December 2018, that he be permitted to travel internationally with the child, [Y], born … 2004, (“[Y]”), currently, aged 14 years, but not with his other child of the parties’ relationship being [X], born … 2007, (“[X]”), currently, aged 11 years, (together known as “the children”).
The child, [Y], lives with the father and the child, [X], lives with the mother.
The respondent mother (“the mother”) seeks orders, as set out in her Further Amended Response filed on 14 December 2018, as follows:
(1)The mother be granted leave for short service of her Further Amended Response and the interim Application be listed on an urgent basis.
(2)All times be abridged to enable the urgent hearing of the interim Application.
(3)That [X] live with the mother.
(4)The father be restrained from:
4.1Relocating [Y]'s residence from the Sydney metropolitan area pending further order of the Court;
4.2Withdrawing [Y] from Suburb G High School or enrolling [Y] in any other school pending further order of the Court; and
4.3Attending upon Suburb A Public School without the prior written consent of the mother or pending further order of the Court.
(5)Deleted
(6)That until further order, the father (also known as [Mr Heinrichs] and [Mr Heinrichs] and [Mr Heinrichs]) born … 1974 and his servants and/ or agents be hereby restrained from removing or attempting to remove the children from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children's name on the Watchlist until the Court orders their removal.
(7)That within fourteen (14) days, the father shall deliver any passports obtained in the name of [Y], including but not limited to passports obtained in Ireland, the United Kingdom and Australia to the Sydney Registry of the Federal Circuit Court of Australia and those passports shall be retained by the Federal Circuit Court, pending further order.
(8)That the mother and the father shall do all things necessary to continue [Y]’s enrolment at Suburb G High School and shall ensure his attendance at the school during school terms, pending further order of this Court.
(9)Deleted
(10)Each party be restrained from:
(a)Denigrating the other party in the presence and/or hearing of the children and permitting any third party from doing so;
(b)Discussing these proceedings in the presence and/or hearing of the children or showing the children any document connected with these proceedings; and
(c)Involving the children in adult issues.
(11)Pursuant to section 91B of the Family Law Act 1975, the Department of Family and Community Services be requested to urgently intervene in these proceedings.
(12)The Independent Children's Lawyer be granted leave to provide a copy of the mother's Affidavit and the Affidavit of Senior Constable B to the Department of Family and Community Services to assist in determining whether they should intervene in these proceedings.
(13)That these proceedings be otherwise transferred to the Family Court of Australia and be allocated an urgent date in a Judicial Duty List.
(14)Not pressed.
The Independent Children’s Lawyer sought orders 1 to 4 as set out in Exhibit “ICL2” and order 5 as set out in Exhibit “ICL1”, which were to the following effect:
(1)That [Y] be removed from the Airport Watchlist in force at all points of arrival and departure in the Commonwealth of Australia
(2)That the father be permitted to travel with [Y] to the United Kingdom on the following conditions:
(a)[Y] is to be absent from Australia for no more than 14 days;
(b)The father is to provide the mother and the Independent Children’s Lawyer with a full itinerary 7 days, prior to the travel, including details of all addresses at which [Y] will reside and contact phone numbers for the period he is outside Australia;
(c)The father is to provide the mother with a copy of [Y]’s plane ticket 7 days prior to travel;
(d)The father is to deposit security of $5 million prior to [Y]’s travel and place such funds in a bank account nominated by the Court;
(e)In the event that [Y] does not return to Australia on the date shown on the return plane ticket, the security of $5 million shall be released by the Court to the mother to enable her to pursue the return of [Y] to Australia;
(f)The father is only authorised by this order to take [Y] to the United Kingdom on one occasion.
(3)In the event that the paternal grandfather, Mr C Heinrichs, should pass away, the father is permitted to take [Y] to the United Kingdom, for the purposes of attending the paternal grandfather’s funeral, in addition to the travel authorised by order 2 above, subject to the following conditions:
(a)[Y] is to be absent from Australia for no more than 14 days;
(b)The father is to provide the mother and the Independent Children’s Lawyer with a full itinerary 7 days, prior to the travel, including details of all addresses at which [Y] will reside and contact phone numbers for the period he is outside Australia;
(c)The father is to provide the mother with a copy of [Y]’s plane ticket 7 days prior to travel;
(d)The father is to deposit security of $5 million prior to [Y]’s travel and place such funds in a bank account nominated by the Court;
(e)In the event that [Y] does not return to Australia on the date shown on the return plane ticket, the security of $5 million shall be released by the Court to the mother to enable her to pursue the return of [Y] to Australia;
(4)The mother is to do all things necessary to enable [Y] to obtain an Australian passport and the father is to pay all costs of such passports.
(5)The father is permitted to change the child’s school to either Suburb D Public High School or E School, Suburb F, subject to the following:
(a)The father is to provide the mother’s solicitor and the Independent Children’s Lawyer with a copy of the lease of premises in the Suburb F/Suburb D area where he proposes to reside with the child, or a contract for purchase of a residence in that area.
(b)Once there is a change of school from Suburb G High School there cannot be another change of school without agreement or further order of the Court.
(c)The father is to provide the mother with a completed enrolment form for the mother to sign.
The father, after having an opportunity to confer with the Independent Children’s Lawyer then agreed, substantially, to the orders sought by the Independent Children’s Lawyer.
The mother then agreed to order 5 as sought by the Independent Children’s Lawyer, in terms of [Y]’s schooling, as set out above.
The father relied on:
a)His Affidavit sworn on 18 January 2019 and filed (with leave) on 21 January 2019;
b)His Affidavit sworn and filed on 31 December 2018; and
c)The Affidavit of Ms H (“Ms H”), sworn and filed on 31 December 2018;
The mother relied on:
a)Her Affidavit sworn on 13 December 2018 and filed on 14 December 2018; and
b)The Affidavit of Senior Constable B sworn on 20 December 2018 and filed on 21 January 2019;
On 21 January 2019, when the matter came before the Court for mention, the father and the Independent Children’s Lawyer pressed the urgency of the matter. The father appeared self-represented. The mother was represented by Mr Gutteres of Counsel and the Independent Children’s Lawyer was represented by Ms Reynolds of Counsel.
The following documents were placed into evidence:
Exhibit No
Document
Tendered by
1
Email from the father to the Independent Children’s Lawyer and the mother
Mother
ICL1
The Independent Children Lawyer’s Minute of Order sought
ICL
ICL2
The Independent Children Lawyer’s Minute of Order sought regarding travel
ICL
The Court, as stated, heard this matter on an interim hearing basis, as the parties have confirmed there is some urgency in obtaining relief.
The Court’s determination, therefore, is based only on a study of the documents before it, including affidavits read and the submissions of the parties and their legal representatives. There is no provision at the interim hearing stage for a more extensive hearing where evidence can be tested in cross-examination and where the Court can make findings of fact, after testing credibility and truthfulness.
The Law
The Full Court of the Family Court of Australia in Goode & Goode [2006] FamCA 1346 set out a number of procedural steps to be followed on an interim application, namely:
“(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s.60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s.61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s.65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.”
Proposals
The parties and the Independent Children’s Lawyer seek the various competing orders, as set out above.
Issues
The essential issues in dispute the subject of determination are whether the father should be permitted to travel to the United Kingdom (“UK”) with [Y]. The parties were able to reach, as said, agreement concerning [Y]’s change of high school. Further, as to whether the matter should be transferred to the Family Court of Australia, at this stage.
Background Facts
The following are the, substantially, agreed background facts:
a)On … 1974, the father was born. He is, currently, aged 44 years. He describes his occupation as “[professional]”.
b)On … 1968, the mother was born. She is, currently, aged 50 years. She describes her occupation as “[professional]”
c)On … 1973, Ms H was born. She is, currently, 45 years of age. She describes her occupation as “Student”.
d)On … 2004, the parties married.
e)On … 2004, [Y] was born. He is, currently, aged 14 years.
f)On … 2007, [X] was born. She is, currently, aged 11 years.
g)On 25 December 2013, the parties separated.
h)On 4 September 2018, these proceedings were commenced by the father.
i)On 12 September 2018, the matter was brought before the Court for a first return date. On that occasion, an Independent Children’s Lawyer was appointed for the children and the parties were ordered to attend a Child Inclusive Conference, as referred to below.
j)On 1 November 2018, the Court made orders, by consent, to the following effect:
1. That the Department of Family and Community Services be invited to intervene in these proceedings;
2. That, pending further order, the father shall not attend at Suburb A School where [X] is attending without the written consent of the mother, or order of the Court;
3. That, pending further order, [X] shall live with the mother;
4. That, pending further other, the mother be permitted to speak with [Y]’s previous treating therapist, Mr I or any future therapist that [Y] attends upon and the father be restrained from doing any act or thing to prevent this communication noting that the parties presently share parental responsibility for the children;
5. That the mother and father shall be restrained from denigrating the other party or members of the other party’s family to the children or in the presence or hearing of the children; and
6. That the mother and father shall be restrained from showing the children any document connected with these proceedings or discussing these proceedings with the children.
k)On 5 November 2018, the parties attended a Child Inclusive Conference with Ms J and the Child Inclusive Memorandum was, subsequently, released to the parties.
l)On 6 December 2018, the matter was listed for mention before the Court and the father’s Notice of Objection filed 30 October 2018 to a Subpoena directed to the NSW Police was dismissed and access, subsequently, granted to the documents produced in respect thereof.
m)On 19 December 2018, the father filed an Application in a Case relating to his proposal for travel to the United Kingdom with [Y].
n)On 21 January 2019, the Court heard the matter for the overseas travel as proposed by the father together with the other issues as identified above and reserved its judgment on those matters.
The Court can, by consent, make orders as set out in the mother’s further Amended Response being orders 1, 2, 3, 4.1, 4.3, 6 (in so far as [X] is concerned), 7 (noting that the father says he does not have any passports for [Y]), 10, 11 and 12.
Further, under s.60CC(5) of the Family Law Act 1975 (Cth) (“the Act”), the Court is not required to have regard to any or all of the matters set out in sub-section (2) or (3), when the Court is considering whether to make an order with the consent of all of the parties to the proceedings.
The mother, further, agreed to the father being able to change [Y]’s schooling and, accordingly, she no longer pressed her orders 4.2 and 8. Accordingly, orders 5(a) and (b) in Exhibit “ICL1” can also be made by consent. The father, initially, did not agree to order 5(c) but then said he would, provided that the mother would answer [Y]’s telephone calls to her. The Court accepts that that proviso is not appropriate or in the child’s best interest insofar as his schooling is concerned. The Court, accordingly, adopts Mr Gutteres and the Independent Children’s Lawyer’s position about the mother being notified as to the father’s proposed school and be provided with a complete enrolment form for her to sign, without any further limitation.
Presumption of equal shared parental responsibility
Section 61DA(1) of the Act creates a presumption, which the Court must apply before it makes any parenting order in respect of a child (and this is the case whether or not a party has sought a specific order for equal shared parental responsibility). By virtue of this section, it is presumed that it is in the best interests of the children concerned that their parents have “equal shared parental responsibility” for them.
The presumption, however, does not apply if there are reasonable grounds for the Court to believe that the children concerned has been subject to abuse or family violence (s.61DA(2)) or in the case of an interim hearing the court considers it inappropriate (s.61DA(3)) or the presumption may be rebutted by evidence which satisfies the Court that it would not be in the interests of the children for the parents to have such equal shared parental responsibility (s.61DA(4)) [emphasis added].
The mother seeks sole parental responsibility.
In the circumstances of this matter, the Court is of the view that it would be inappropriate on an interim determination to apply the presumption given the controversial evidence before it, the levels of distrust between the parents and the high degree of conflict between them.
The parties attended with Ms J at a Child Inclusive Conference, referred to in paragraph 15(k) above. Ms J’s Memorandum to the Court, as a result, was to the following effect:
a)Both parents agreed to support a regular arrangement between [Y] and [X] so that the siblings could spend time together and to allow this to occur, independently, of any contact between the children and the parents. This is the basis of the Court’s proposed order 16.
b)The father was very keen to attempt mediation and the mother said that she would consider options such as shuttle or telephone mediation.
c)Both parents agreed that it would be better for both children to have a relationship with both parents, as long as it was safe to do so.
d)The father proposed in his application that the children live mainly with him and spend alternate weekends with the mother. During interviews, the father said he had hoped that the children would spend week-about time with each parent but that he did not, currently, know what the best parenting arrangements should be.
e)The mother proposed in her response that the children live with her and spend one day per fortnight with the father. During interviews, the mother said that she was unsure what would be best for the children and was concerned about the father’s influence on [Y].
f)The father would like to travel to England with [Y] to visit extended family.
g)The mother did not want the father to take [Y] overseas.
h)The mother proposed she hold sole parental responsibility.
i)The father did not broach parental responsibility.
j)The father alleged that the mother had, previously, scratched his face and that he had, on occasions, pushed her away in self-defence. He considered that the mother’s allegations of his violence towards her to have been exaggerated.
k)The mother alleged that the father had been violent towards her on a number of occasions with the most recent being in June 2018 at the children’s sports game. There is a current Apprehended Violence Order in place until August 2020. The Court notes that this has been extended to September 2022 see paragraph 77 below.
l)The father claimed that the mother drank excessive amounts of alcohol and is sometimes hungover in the mornings. He denied being a regular user of marijuana and said that he has been randomly drug-tested as part of his previous job.
m)The mother denied drinking excessively and said that she had about 2 to 3 alcoholic drinks while cooking and during dinner. She said that her alcohol intake depended on the season but that she did not drink alcohol during the day. She claimed that the father was a daily marijuana user during the time they lived together.
n)The father expressed concern that [X] was not spending any time with him.
o)The mother expressed concern that [Y] was not spending any time with her. She reported that he had sent her abusive and threatening messages and also personal photographs that she, previously, had meant for the father. She expressed concern that these messages and actions were due the father’s influence on [Y].
p)In about August 2018, [Y] disclosed to the father that, in January 2018, the mother had tried to touch him ([Y]) sexually while she was intoxicated and that she did not remember when he broached this with her the next morning. The mother denied that this had occurred.
q)Both parents considered that the other parent was unduly influencing the child living in their care.
r)Both parents reported that [X] has long suffered from anxiety and that this has always been an area of emotional regulation that she had to manage.
s)The mother claimed that the father suffered from anxiety and paces up and down. She also claimed that, at times, he appeared to be delusional.
t)The father said that he suffered from depression and anxiety but that he had had a very bad reaction to prescribed medication. He said that his main source of distress is the family separation and the Court proceedings.
u)The father said that he was concerned about the mother moving interstate with [X] but that he no longer was worried about this because of Court orders for her to remain in the Sydney Metropolitan area.
v)The mother said that she was concerned about the possibility of the father collecting [X] from school without her consent. She said that she did not want to sign [Y]’s passport application because she believed she will never see him again if he travelled to England with the father, to see his paternal relatives.
w)While both parents described having a close relationship with both children, the father acknowledged that he was not always as involved in the family as he would have liked to have been.
x)The parents, apparently, lived together as a separated couple during at least a 4 year period, with some attempt at reconciliation during this time.
y)The father indicated that he had re-partnered and spends time with his partner and her 3 children. He acknowledged that this may sometimes be difficult for [Y].
z)The mother indicated that she continues to feel fearful of the father and finds him intimidating. She said that she was unsure about mediation because she perceived a power differential between her and the father. However, she said that she will give consideration to attempting mediation with a view to finding some resolution to the current difficulties, especially regarding the siblings having no contact.
aa)The father seemed to consider some of his previous reactions justified due to what he perceived as manipulative behaviour by the mother.
bb)Regarding [Y] accessing personal photographs of the mother, the father said that the photographs had been uploaded to the ‘cloud’ and then, automatically, downloaded onto the family’s media site and that he did not realise [Y] had access to this material.
cc)There was discussion about the father securing Court documents and other material that he does not consider suitable for [Y] to read. The father said that he tried to be careful but indicated that [Y] was, in some respects, more knowledgeable and competent about Court processes than he was.
dd)Both parents indicated that they felt distrustful of the other parent.
ee)Both parents presented as very upset about the sibling separation and the fact that each parent was temporarily estranged from one child. They both seemed loving towards both children.
ff)[Y] was interviewed alone. He presented as angry and upset and very disillusioned with government (State or Federal) services. He said that he had read his father’s Court documents after finding them in the boot of the father’s car.
gg)[Y] said that, for him, the most important thing was for him to be able to spend time with his sister. He said that he misses her very much and that they used to be close. He said that they did not “hang out” much because he was older than [X] but that they confided in each other and watched favourite television programs together.
hh)[Y] said that he had been “blocked” (on her phone) by [X] since the parental separation and that he did not know why. He said that he has not seen [X] since spending a weekend at the mother’s home in July 2018. He said that this weekend had not gone well and that he had been “sad and miserable”.
ii)[Y] said that he no longer wanted to spend time with the mother. He then corrected this to “not for a while”. [Y] said that he had sent the mother some messages because he had felt very angry with her. It was not clear whether he linked those messages with the current separation between him and his sister and the mother.
jj)The father reported that [Y] had been cyber-bullied at his previous school and that this had been very distressing for him. The father said that he regretted not being more involved with [Y], at this time. He said that he and [Y] were learning to reconnect and indicated that, at times, he (the father) found it challenging to look after a teenager.
kk)[Y] said that his new school was “good” and much better than his old school. He said that he had made some friends there.
ll)[Y] said that he would be happy to abide by [X]’s stipulations about their meetings and seemed very pleased at the prospect of a possible arrangement.
mm)[X] was, initially, distressed at the prospect of going into child care and refused to go while [Y] was there.
nn)During interview, [X] was calmer and seemed happy to talk about her experiences. She seemed keen to recount her recall of events at the time of the parental separation.
oo)There was some discussion about the prospect of meeting with [Y]. [X] said that her main objections were the prospect of [Y] telling her to “get over it” in terms of how [X] felt about the father’s past behaviour. She said that she felt that [Y] did not believe her. She said that she was also uncomfortable about [Y] phoning the father while she was there. She said that she would be happy to meet [Y] (such as in a café) if she could be reassured on these points. She said that she misses [Y].
pp)[X] said that she is not ready to see the father and she felt that she may take a year or so before being ready to speak to him. As she spoke about this, the length of time she said that she envisaged before spending time with the father became shorter and shorter.
qq)[X] said that she did not like being “ambushed” and she used this word several times. She was asked about this and she said that she often used the word “ambush”, such as when she is composing stories for school.
rr)There was some discussion about [X]’s contact with her therapist. She said that she used to see her weekly or fortnightly and now “checks in” every month or few months. She said that she does not go if she does not feel like it.
Ms J provided the following in terms of her “future directions” for the Court’s assistance:
a)It would be beneficial for both children if arrangements could be made for them to meet in a manner that was safe and manageable for both of them and that was responsive to [X]’s concerns. This would need to be planned carefully in terms of venue, timing and how the siblings go to and from the venue. It would be good if the siblings could meet once per week or fortnight and it may be possible for them to, eventually, participate in activities together. They both reported a, previously, close relationship and it was likely in their interests, if this could resume. This weighs in favour of order 16 as proposed by the Court.
b)[X] presented as a child who already struggled to manage her anxiety and it was quite reasonable that she would feel some concern about meeting her brother, given the current and apparent polarisation of each child with each parent.
c)[Y] presented as a young person who was struggling to find his place within the current family configurations. He seemed to expect an adult approach (from himself) and it was not clear whether he was also under some pressure from the father. In some respects, [Y] presented as somewhat isolated and he seemed to be at risk of further isolation. It was, completely, inappropriate for him to be involved in the parental conflict and it was important that this be discouraged.
d)[Y] presented as feeling rejected and angry, possibly regarding both his parents. He was at an age and developmental stage when he may be less likely to seek therapeutic support. However, it would be very helpful if he could be linked to professional services that specialised in issues for teenagers.
e)The father may consider seeking advice and support from a service such as RAPS (Relationships Australia) or, similar, to assist with his role with [Y], even if [Y] is not prepared, at this point, to attend such a service.
f)It is understandable that the mother would be concerned about the prospect of [Y] going overseas and the possibility that he may not return, especially in light of the father’s apparent impulsivity. However, it may also be very beneficial for [Y] to link with extended family, especially if there is a comprehensive plan for this kind of support to take place.
g)It may be possible to broker some arrangements between the mother and [Y] prior to going overseas, if he does indeed go.
h)Both parents would likely benefit from attending a parenting after separation course.
i)The mother’s misgivings about mediation are understandable. However, it may be possible for her to participate in such a process, with appropriate support, in order to develop some arrangements that would mitigate the risks for the children.
The Law in relation to overseas travel
There are a number of authorities which set out the factors to be considered when making an order in relation to overseas travel.
In The Marriage of Kuebler v Kuebler (1978) FLC 90-434, the Full Court of the Family Court of Australia stated:
“That the considerations that should be given to an application which involves a custodial parent taking a child out of the jurisdiction, without being exhaustive, include:
(a) the length of the proposed stay and the jurisdiction;
(b) the bona fides of the application;
(c) the effect on the child of any deprivation of access;
(d) any threats to the welfare of the child by the circumstances of the proposed environment;
(e) the degree of satisfaction in which the court bases its assessment of the party that a promise to return to the jurisdiction would be honoured.”
In Line & Line (1996) 21 FamLR 156, the Full Court of the Family Court of Australia noted the matters to be considered in an application for overseas travel included the following:
Firstly:
“…the degree of risk that the departing parent, once permitted to leave Australia, will, despite assurances to the contrary, choose not to return. In assessing that degree of risk, obvious considerations are the existence (or otherwise) of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here), the existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues) and the existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there).”
Secondly:
“…it will also be relevant, in exercising this discretion, to consider whether the country to which the departing parent intends to travel with the children is or is not a signatory to the Convention on the Civil Aspects of International Child Abduction signed at the Hague on the 25 October, 1980 (“the Convention”). However, in considering and deciding what weight to give to this factor, the Court would have to bear in mind that, even if the designated destination is a convention country, once the departing parent has left Australia there may be little to prevent him or her deviating from that designated destination to another destination in a non-convention country or, after going to the designated destination, from then travelling on to a non-convention country.”
Thirdly:
“…a relevant consideration in the exercise of this discretion is the financial circumstances of both parties, and in that context the relative hardship which the departing parent would suffer by the imposition of security at a particular level as compared with the hardship which the non-departing parent would suffer if the security were fixed at a lower level.
In Thomason & Malhotra [2010] FamCAFC 85, it was accepted by the Full Court of the Family Court of Australia that Federal Magistrate Purdon-Sully (as she then was) applied the correct approach as to the factors to be considered in the assessment of risk of non-return of a child from overseas travel, as had been set down by the Full Court in Line & Line (1996) 21 FamLR 156. The factors were said to be as follows:
1)The existence or otherwise of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here);
2)The existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues); and
3)The existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there); and
4)Whether the country of travel is a signatory to the Hague convention.
It must also be noted that the best interests of the children are the paramount consideration in dealing with applications for orders in relation to children and, appropriately, this Court must also consider the factors set out in s.60CC of the Act relevant to this matter.
The father proposed to travel to the UK, urgently, on the basis that his father, the paternal grandfather, was in serious ill health and may pass away at any time. This potential travel would be undertaken with [Y], Ms H, being the father’s partner and her children.
The father and the Independent Children’s Lawyer reached agreement as to the orders sought in Exhibit “ICL2”, save for the period of time specified, with the Independent Children’s Lawyer seeking 14 days and the father seeking 21 days. The Court is of the view that 21 days is an appropriate length of time for travel to the UK, as argued by the father, noting the time differences between the UK and Australia, the time required to travel to the UK and, potentially, the need for domestic travel to be undertaken within the UK. According to Ms H’s affidavit, the father intends to travel to both K City (where the paternal grandfather is located) and L City (where Ms H’s brother’s family resides).
With regard to the travel issues, the mother conceded that it was not workable for both of the children to transition to her care in the current circumstances. The father disputed that position but at the basis of his application to travel with the child was the issue that there was no alternative viable suitable arrangement or accommodation for [Y], if the father was to travel overseas, on his own. The Independent Children’s Lawyer supported that position. The Court accepts that that position weighs heavily in favour of the father’s application to so travel with [Y].
Mr Gutteres raised various inconsistencies in the father’s evidence about the paternal grandfather’s health condition as a matter of concern going to the bona fides of his application for travel and as to the risks involved, noting that he had told Ms J that he had wished to travel to the UK with [Y] to visit extended family see paragraph 25(f) above.
Whilst the father says he gave relevant telephone numbers to the Independent Children’s Lawyer and the mother to make their own enquiries of the nursing staff who worked at the paternal grandfather’s health facility and as to the palliative treatment regime, the father being self-represented probably did not appreciate that he bore the onus and that it was not up to the Independent Children’s Lawyer and the mother to put on evidence refuting that position. As the Independent Children’s Lawyer indicated, more than likely, it was the father who would have been able to obtain the necessary medical authorities to release information which would have been of assistance to the mother and to the Independent Children’s Lawyer in considering the father’s proposal for travel. Whilst the Court has some doubts about the paternal grandfather’s medical condition, the critical issue here turns on the father’s own freedom to travel and the corollary that if [Y] is prevented from accompanying the father (noting that there was no workable position for the child to transition to the mother’s care), that this would then leave [Y], potentially, homeless.
The Court accepts that there was no “independent” objective evidence as to the paternal grandfather’s medical condition. The matters as to his health were deposed to by the father and his partner in their affidavits. In the father’s affidavit, the father says that the paternal grandfather was admitted to hospital in the second week of December 2018 following a car accident in which he broke his leg (tibia) requiring reconstruction with concerns expressed by the surgeons that he might not survive surgery. However, in Ms H’s affidavit filed on 20 December 2018, she deposes to the paternal grandfather being in ill health and, currently, admitted to hospital following a car accident in which he had broken his tibia and tibia plate. She indicated that he had suffered a serious injury, particularly so, for an “elderly gentleman” and that he may not be “strong enough for surgery”.
The Court accepted the Independent Children’s Lawyer’s submission that, in view of the inconsistencies concerning the paternal grandfather’s health, a very sizeable security deposit weighed in favour of the father’s positon. In that regard, the father, himself, proferred the security sum of $5million. The mother and the Independent Children’s Lawyer accepted the father’s figure and weight is attached to that.
The father deposed to be working in full-time employment, earning in excess of $200,000.00 per year.
Ms Reynolds submitted that the father had been with his current partner, Ms H, for over 2 years and that they were looking to move in together with her children from a previous relationship and with [Y]. Ms H is, currently, a university student in the process of obtaining a Bachelor degree. She is the primary carer for her 3 children from a previous relationship, being [M] (aged 12 years), [N] (aged 10 years) and [O] (aged 7 years).
Further, as Ms Reynolds submitted, the father’s circumstances have changed since he sent an email to the mother and the Independent Children’s Lawyer relating to his suggestion that [Y] live in the UK for 6 months, noting that this was a basis of some concern to the mother as to the father’s bona fides. Ms Reynolds also submitted that the father has now proposed to enrol [Y] in a school in Suburb D.
[X] is in Australia and the father’s approach was to ensure that the children would spend time with each other. This would be lost if [Y] was to remain in the UK.
The above matters weigh in favour of the father’s application for travel.
Based on the various assertions by both the mother and the father, the Court accepts that there is a high degree of conflict between the parties. This is evidenced in their affidavit material. The Court accepts, however, that the level of conflict between the parties would not, of itself, be a significant motivation for the father to remain in the UK with [Y], leaving [X] in Australia and perpetuating that separation.
There is no evidence that the father owns real estate or has any business interests in the UK. However, with respect to the paternal grandfather’s ill health, the mother raised some concern that there was no evidence filed by the father’s mother who was in Australia, noting that such evidence would have been highly relevant to the father’s application and, further, given that she was in Australia, it cast a doubt over the veracity of the father’s account as to his father’s medical condition, in that it would have been unlikely for the father’s mother to so travel to Australia, if her husband (the paternal grandfather) had been at his life’s end.
The Court notes that the UK is a signatory to the Convention on the Civil Aspects of International Child Abduction and significant weight is attached to that.
Whilst the Court accepts Mr Gutteres’ submission that there are always difficulties in returning the child, even from a Hague Convention country, the Court notes that these would not, necessarily, prevent [Y] from being so returned.
The Best Interests of the Children
When considering an application to travel overseas for a period of some 18 days, Fowler J in Busch & O’Shea [2013] FamCA 461 stated:
In deciding whether to make a particular parenting order the court must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child’s best interests, the court must consider certain matters under section 60CC. Those matters are the “primary considerations” and the “additional considerations” set out in that section.
In order to determine the child’s best interests, the Court must have regard to the “primary considerations” under s.60CC(2) of the Act which are:
1)the benefit to the child of having a meaningful relationship with both of the child's parents; and
2)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the considerations set out in the subsection (2), the Court is to give greater weight to the consideration in paragraph 2(b). See s.60CC(2A) of the Act.
The length of the proposed trip is limited to 21 days. This is not a long period of time and it is unlikely to jeopardise any relationship between [Y] and the mother, noting that that relationship is subject to its current difficulties, as set out above.
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
No specific views of [Y] as to travel have been obtained in an admissible form.
[Y] has, however, expressed views that he does not, at this time, wish to live with or spend time with the mother and has expressed anger towards her.
The Court, further, accepts that [Y] is of a sufficient age, being 14 years, to be able to assert his position and, in particular, to take steps to implement his own return to Australia, particularly, to make contact with and engage in a relationship with his sister, [X], going forward.
(b) the nature of the relationship of the child with:
(i) each of the child's parents;
The father’s evidence was that he has a strong relationship with [Y]. That is not disputed by the mother.
The Court accepts that [Y]’s relationship with the mother has, for a number of reasons, been fractured to an extent that he does not, currently, wish to live with or spend time with her. Similarly, [X]’s relationship with the father appears fractured. There are ongoing issues in terms of both [X] and [Y] re-engaging with each other. An order directed to the parties to facilitate their re-engagement appears consistent with what they told Ms J in the Child Inclusive Conference.
and other persons (including any grandparent or other relative of the child);
[Y] also has a problematic relationship with [X] although it would appear that both wish the opportunity to repair that.
The Court is of the view that there should be an order requiring the parties to do all things reasonably necessary to enable both [Y] and [X] to spend time together in accordance with the children’s wishes and at a time and place as agreed to between the parties in writing.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
The Court accepts that [X] has aligned with the mother and [Y] has aligned with the father. Neither of the parents appear able to assist their children, without an order being made, to meet to repair their own relationship issues. This factor weighs in favour of an order requiring the parties to forthwith take such steps.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
There is no evidence that the father is unable to care for [Y] if travelling overseas with him. Weight is attached to that.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
[Y] will not be separated from the father while travelling with him overseas. [Y] will be travelling with the father’s partner and her children and weight is attached to that.
[Y] is already separated from his mother and the overseas trip is unlikely to affect that further.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
There are no such identified practical difficulties and expense issues.
(f) the capacity of:
each of the child's parents; to provide for the needs of the child, including emotional and intellectual needs
(ii) any other person (including any grandparent or other relative of the child);
The Court accepts that the father and his partner are able to provide for the needs of [Y] while travelling overseas.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant.
The Court accepts that [Y] is likely to benefit from the overseas travel proposed.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
the likely impact any proposed parenting order under this Part will have on that right;
This factor is not applicable in this matter.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The father appears to have a volatile personality. He acknowledged causing problems for himself in terms of his discussions with various authorities including the Department of Family and Community Services (“FACS”) and the Independent Children’s Lawyer. He explained to the Court that he threw verbal “hand grenades” in terms of his submissions in order to elicit responses, often unaware of the consequences of his actions. He presented, at times, as highly emotional.
(j) any family violence involving the child or a member of the child's family;
Each party has asserted violence as against the other. Each has denied the assertions as to their own violence.
The Education Department on behalf of the Suburb A Public School issued the father with an Enclosed Lands Protection Order in August 2018 in terms of his accessing school grounds.
The mother deposes in her affidavit filed 14 December 2018 to alleged threats made by the father to her lawyers on 28 November 2018 threatening to shut down their email server.
Senior Constable B deposes in his affidavit to observations of the father in November 2018 wherein the father stated: “I thought you were here to arrest me. I had all these pills I was going to take if you were going to arrest me. It was my contingency plan, I didn’t want to go to jail”. A short time later the father was taken by ambulance to Suburb P and was scheduled under the Mental Health Act (NSW). The said police officer observed that the father when arrested in July 2018 for an alleged breach of an Apprehended Domestic Violence Order (“ADVO”) attempted to control the whole interview and showed no respect for the Police.
Senior Constable B expressed concerns for [Y] in the father’s care in that he believed that the father was using [Y] as a tool to communicate and instil fear into the mother.
(k) if a family violence order applies, or has applied, (be it final, interim, contested or consented to) to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following:
the nature of the order;
the circumstances in which the order was made;
any evidence admitted in proceedings for the order;
any findings made by the court in, or in proceedings for, the order;
any other relevant matter;
A Family Violence Order was issued against the father on 25 December 2014 by the Tasmanian Police.
An interim Apprehended Violence Order was issued by the NSW Police on 2 June 2018.
The father pleaded guilty to a common assault charge on the mother on 13 August 2018. The father was charged in relation to ADVO breaches on 23 July 2018 and 8 August 2018.
A final ADVO was issued against the father by the Local Court of New South Wales at Suburb P for a period of 2 years on 25 September 2018, expiring on 25 September 2020.
The father has been convicted of 2 ADVO breaches and has received a correctional release order without conviction for 12 months and a community correctional supervision order for 12 months.
On 20 November 2018, the final ADVO was varied on an interim basis to include [X] as a protected person, together with the mother.
On 18 December 2018, the Local Court of New South Wales at Suburb P made a final ADVO against the father for both the mother and [X]’s protection effective until September 2022.
There is no ADVO in place protecting [Y] as against the father. Weight is attached to that.
Senior Constable B stated that there had been a number of domestic violence offences involving the father which have steadily increased since 2008. He stated there have been 17 further domestic violence incidents since June 2018. These, the Senior Constable says, will potentially negatively affect both children.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The Court accepts that the father’s and the Independent Children’s Lawyer’s proposal for travel is the least likely to lead to the risk of further proceedings, noting, however, that these are interim orders.
(m) any other fact or circumstance that the court thinks is relevant
The mother has relied on an affidavit by Senior Constable B based in the Region Q High Risk Domestic Violence Unit. The Senior Constable deposes to becoming aware of the father and the mother in September 2018 when conducting an operation involving ADVO compliance checks. His investigation included reviewing emails containing death threats sent from [Y]’s email which he said he now suspects were written by the father. He, further, believed that the father had “hacked” the mother’s Facebook account and had contacted her friends causing them to be concerned. The Senior Constable stated that the father had become one of the Police’s targets. The Senior Constable refers to a number of Police reports relating to threatening and harassing emails where the mother has been named as the victim. The Senior Constable reviewed a number of emails sent by [Y] in August 2018 which, he said, he believed had, in fact, come from the father and not [Y]. He, further, stated that the father had sent emails to the mother from a criminal entity in the UK known as “[Mr Heinrichs]”. From the Senior Constable’s review of emails sent by the father he concluded that there were a number of features which identified the communications from [Y] as being, in fact, from the father, including the grammar and the common words and phrases used.
The mother in her affidavit filed 14 December 2018 deposes to the involvement of FACS and interviews with the Joint Investigative Response Team (“JIRT”) officers in October 2018. On 30 October 2018, she says that the JIRT team had informed her that a claim that had been made that she had tried to overdose 2 weeks beforehand had not been substantiated.
The mother says that she has concerns that the father has obtained a British Passport for [Y], without her consent. The father denies that assertion. The father had made some reference to obtaining an Irish Passport for [Y]. The uncertainty of the passport position weighs in favour of an order that any passport issued for [Y] be held by this Court, pending written agreement of the parties or order of the Court.
Security
When determining the fixing of an appropriate level of security, the Court notes the following:
Line & Line (1996) 21 FamLR 156:
“…the trial Judge should have regard is the purpose of such security, in respect of which we adopt, with respect, the two-fold purpose referred to in the submissions of counsel for the husband and set out in paragraph 4.42 above namely:
(a) to provide a sum which will realistically entice the person removing the children to return; and
(b) to provide a sum to adequately provision the party left in Australia to take action and proceedings in Australia and overseas in an endeavour to obtain the return of the children.”
The Full Court of the Family Court of Australia in Line & Line (1996) 21 FamLR 156 considered at paragraph 4.49:
The next matter is obviously the degree of risk that the departing parent once permitted to leave Australia will, despite assurances to the contrary, choose not to return. In assessing that degree of risk obvious considerations are the evidence (or otherwise) of continuing ties between the departing parent and Australia (such as ownership of real estate, existence of business interests or the residence of close family or friends here), the existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child-related issues) and the existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests or the residence of close family and/or personal friends there).
In the present case, the father proposed himself, the provision of $5million as security for any travel. The Independent Children’s Lawyer supported this proposal, noting that such a sum would be more than sufficient, in the usual circumstances, to prosecute the return of the child to Australia from the UK.
Transfer to the Family Court of Australia
The mother and the Independent Children’s Lawyer suggest that this matter should be transferred to the Family Court of Australia because of its complexity and the likelihood that any potential hearing would exceed the days mandated by the Protocol between the Courts. Mr Gutteres identified those issues as follows:
a)The father is self-represented and there are mental health issues concerning him;
b)The father disputed allegations of violence by him and asserted violence by the mother;
c)There are numerous incidences of Police involvement with the father being the subject of a current final ADVO protecting the mother and [X];
d)In October 2018, FACS have identified the family as facing a “very high risk assessment” with the abuse level at “very high” and the neglect level at “moderate”. FACS have also identified that the father may use cannabis twice a day but the father denies this use; and
e)There are complex questions of alienation and estrangement and, as Mr Gutteres, submitted, potential psychological investigations as to the mental health of the parties and the children would be required. As such, his view was that the matter should be transferred to the Family Court of Australia, given the potential for the hearing times to exceed 4 days.
The father while opposing a transfer to the Family Court of Australia gave no reason why a transfer should not be made.
The Court is of the view that the matter is sufficiently complex and likely to exceed the protocol on hearing days in this Court, for it to be transferred, sooner rather than later.
Conclusion
Having regard to the factors discussed above, the Court is of the view that the orders set out at the commencement of these reasons are in the best interests of both [Y] and [X] and, accordingly, the Court will make those orders.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Kemp
Associate:
Date: 13 February 2019
0
3
2