HEWART & WIGNALL

[2011] FamCA 264

FAMILY COURT OF AUSTRALIA

HEWART & WIGNALL [2011] FamCA 264

FAMILY LAW – CHILDREN – where mother seeks orders which would enable children to travel overseas – where mother and children have previously travelled overseas and returned without incident – where children’s best interests served being able to visit grandparents resident overseas – orders to facilitate issuance of passports and overseas travel made

APPLICANT: Ms Hewart

RESPONDENT: Mr Wignall

FILE NUMBER: SYC 8683 of 2007

DATE DELIVERED: 15 April 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 12 April 2011

REPRESENTATION

ADVOCATE FOR THE APPLICANT: Ms Hewart appeared in person

ADVOCATE FOR THE RESPONDENT: Mr Wignall appeared in person

Orders made 12 april 2011

1. I give the applicant mother leave to make an oral application for orders .the effect of which would be to enable her to remove the parties’ children T born … April 2000, L born … August 2001 and F born … April 2003 from the Commonwealth of Australia departing 18 June 2011 and returning no later than 13 July 2011.

2. All orders which would prevent the children T born … April 2000, L born … August 2001 and F born … April 2003 from being removed by the applicant mother from the Commonwealth of Australia for the period 18 June 2011 and ending 13 July 2011 are suspended.

3. Within 72 hours the respondent father shall give the applicant mother duly executed applications for the issue to the child L of Australian and United Kingdom passports.

4. In the event the father fails to comply with the above order the applicant mother shall have sole parental responsibility in relation to applications for Australian and United Kingdom passports for the child L.  This order expires upon the issue to L of Australian and United Kingdom passports.

5. The effect of the above order is to the extent required the requirement of the father’s consent and execution of documents to enable an Australian passport and United Kingdom passport for the child L is dispensed with.

6. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders. 

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8683 of 2007

Ms Hewart

Applicant

And

Mr Wignall

Respondent

REASONS FOR JUDGMENT

1. On 13 April 2011 I made parenting orders and injunctions in relation to the parties’ three children, T born in April 2000, L born in August 2001 and F born in April 2003.  I indicated I would provide reasons later.  These are those reasons.

2. Ms Hewart (“the mother”) sought orders which would enable Australian and United Kingdom passports to issue for their middle child and to enable all three children to visit the maternal family in the United Kingdom during June/July 2011.  Further orders were sought to enforce compliance by Mr Wignall (“the father”) with an injunction made by consent on 6 May 2008 which restrained him from “consuming alcohol such that [he] would be over the legal limit for driving while the children are in [his] care”.  The mother is similarly restrained.  There is no suggestion she has breached the injunction.

3. During the hearing the mother pragmatically abandoned her application for orders in relation to the father’s consumption of alcohol.  This component of her application was, in effect, her final attempt to persuade the father how, what she considers, his excessive consumption of alcohol distresses the children and ultimately may undermine relationships the children value with him.  The catalyst for this component of the mother’s application related to the children’s attendance at a family celebration hosted by the father.  He was heavily intoxicated and ended up in hospital.  Although the father was somewhat coy about the extent of his inebriation, it is tolerably clear he was more than moderately affected by alcohol.  The children were troubled by what occurred and raised the issue with the mother.  After the issue was ventilated before me the parties agreed no further action was required.

4. The more contentious issue related to L’s passports.  The mother wishes to take the children to see her parents in the United Kingdom in June/July 2011.  Her parents are in their eighties and her father has cancer.  Hence her desire for a timely visit. 

5. The father opposed the mother’s application.  According to him there is an unacceptable risk the mother may not return the children to Australia.  He said his failure to pay child support and the collapse of the families’ business has resulted in the mother being in a difficult financial position and consequently she has insufficient ties to motivate her to remain resident in Australia.

6. In March 2010, the parties’ business collapsed.  When this happened, via a mutual friend, the mother sought the father’s agreement to the children relocating to the United Kingdom.  The mother was then very anxious about how she could afford even modest accommodation.  Hence she floated the notion of her and the children residing in the United Kingdom where she would have her family’s support.  The father did not agree.  He obtained after-hours emergency relief which resulted in the children being placed on the Airport Watch List.  When the matter came before the Court the following day, Benjamin J refused his application for continuing orders for the children to be on the Airport Watch List and for their passports to be surrendered to the Court.  Benjamin J accepted the mother’s undertaking to comply with the orders made 6 May 2008, the effect of which are the children may not be removed from the Commonwealth of Australia, without both parties agreement or pursuant to an order.

7. The mother denied there is a risk she might retain the children in the United Kingdom.  She pointed out there has been no attempt by her to remove the children and that the two other children have Australian and UK passports.  The mother believes there are advantages to the children if they were able to live in the United Kingdom.  However, in the face of the father’s opposition to this course, presently, she does not plan to pursue this issue.  The mother is aware of the Hague Convention on the Civil Aspects of International Child Abduction (“Abduction Convention”).  She pointed out that post-separation, with the father’s agreement, she and the children on a number of occasions have travelled internationally, including to the United Kingdom.  On each occasion the children return to Australia without incident.

8. According to the father, the mother’s father has had cancer for a considerable time and there is no urgency for her or the children to visit the mother’s parents.  He pointed out he is currently unemployed and would be unable to meet the cost of litigation if the mother failed to return the children.  It was pointed out, if the children fail to return, prima facie, this would be a wrongful retention as that term is used in the Abduction Convention.  If Australia accepted his request to activate the Abduction Convention, proceedings would be undertaken by the Central Authority in the United Kingdom without cost to him.  Potentially, costs might be incurred if the father was required to collect the children from the United Kingdom.  Although the father is unemployed, he has remarried and one brother is a medical specialist.  Such costs as the father might need to meet to secure the children’s return would probably be available via family connections.

9. However, the probability the mother might retain the children in the United Kingdom and/or fail to return them to Australia is assessed as extremely low.  The mother impressed me with her commitment to abide orders and not act contrary to law.

10. In relation to travel, if the father was unsuccessful in persuading the Court against the mother taking the children to the United Kingdom and L’s Australian passport being renewed, he argued against renewal of the child’s United Kingdom passport.  Both parties have United Kingdom passports by descent.  The children are similarly entitled.  The father argued it would be easier for the mother to remove the children on United Kingdom passports.  He presented no evidence to support this proposition.  In relation to this issue, the tenor of the father’s evidence could be categorised as opposition for the sake of it.  Unfortunately, it is necessary to observe, the father’s protestations appeared to have a strong connection to self-interest and comparatively little regard for the child’s interests. 

11. I agree with the mother for so long as the children are entitled UK passports they should have them.  Residency requirements and rules which govern access to passports are not static.  Rather than run the risk L may lose his current entitlement to a UK passport I am persuaded orders should be made as sought by the mother.

12. I am satisfied the children should have the opportunity to visit their maternal grandparents as proposed by the mother.  I am not persuaded that giving her this opportunity produces anything more than a theoretical risk they may not return unless the Abduction Convention process was activated.  I am strongly of the opinion the father should have agreed to the mother’s request and that she should not have been put to the stress and effort of this application.  Should similar issues arise in the future I trust the father will take a more child focussed approach than was evident on this occasion.

1. For these reasons I made the orders identified at the start of this judgment.  I am satisfied they are in the children’s best interests.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 15 April 2011.

Associate:     

Date:              15 April 2011