HIGGINS & HIGGINS

[2013] FCCA 1143

FEDERAL CIRCUIT COURT OF AUSTRALIA

HIGGINS & HIGGINS [2013] FCCA 1143

Catchwords:
FAMILY LAW – Whether mother can take the children on an overseas holiday – whether a risk of children not being returned.

Legislation:  

Family Law Act 1975 (Cth), ss.60CA, 60CC, 65DA(2), 62B

Australian Passports Act2005 (Cth), ss.7, 11

Applicant: MS HIGGINS

Respondent: MR HIGGINS

File Number: DGC 3138 of 2008

Judgment of: Judge Phipps

Hearing date: 28 June 2013

Date of Last Submission: 28 June 2013

Delivered at: Dandenong

Delivered on: 28 June 2013

REPRESENTATION

The Applicant: Appearing in person

The Respondent: Appearing in person

ORDERS

1. That the mother of the child/ren X born (omitted) 1999 and Y born (omitted) 2001 be permitted to apply for an Australian Passport to enable the child/ren to travel internationally notwithstanding that the father of the child/ren has not signed the passport application form and furthermore the said child/ren be permitted to travel internationally without the permission of the respondent father.

2. That the wife is permitted to take the children on holiday to (country omitted) for 1 week during the third term 2013 school holidays.

3. That not less than 30 days prior to travel the wife provide the husband with:

   (a)Details of travel times and flight numbers for both departure and return;

   (b)The address at which the children will be residing in (country omitted);

   (c)A telephone number or electronic address on which the children can be contacted.

4. That not less than 14 days prior to departure the wife lodge the sum of $2,000.00 with the Registry Manager of the Federal Circuit Court of Australia at the Dandenong Registry.

5. That in the event the mother does not return the children to Australia before the commencement of the fourth school term 2013 the said sum of $2,000.00 be paid to the husband.

6. That upon the mother after the commencement of the fourth school term producing for inspection at the Dandenong Registry of the Federal Circuit Court of Australia the children’s passports the sum of $2,000.00 be repaid to her.

7. That in the event that after October 2013 either party intends to take the children or either of them out of the Commonwealth of Australia that parent give the other parent 30 days notice in writing of the intended destination, duration of the travel and particulars of travel times and flight numbers out of and returning to Australia.

8. That pursuant to ss.65DA(2) and 62B of the Family Law Act1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT DANDENONG

DGC 3138 of 2008

MS HIGGINS

Applicant

And

MR HIGGINS

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. The parties Ms Higgins and Mr Higgins have two children.  They are X born (omitted) 1999, aged 13 and Y born (omitted) 2001, aged 11.  The mother applies for an order that the children be permitted to have passports, the effect of which would be that the children be permitted to have passports without the consent of their father being obtained.  And so in terms of the relevant provisions of the Australian Passports Act2005 (Cth) that the children be permitted to travel internationally without the permission of the father being obtained.

2. The mother wishes to have passports so that the children can travel with her to (country omitted) in the second part of the 2013 September school holidays.  She intends to visit a friend, Mr G, who she describes as the love of her life, I infer from the material that he lived in Australia for some time but is now resident in (country omitted).  The mother says that Mr G’s parents, Mrs P and Mr P, will also be visiting.  She says the children know them and have referred to them as Nana (omitted) and Grandpa (omitted); that they will be visiting Mr G in (country omitted) during the 2013 September school holidays, and she says the children would like to see them, and she would like the children to see them.

3. Mr Higgins’ opposition is based on a fear that the children might not be returned to Australia.  It is wider than a fear that they might not be returned to Australia after the 2013 September school holidays.  He submits that there is a risk that if the children have passports, they, at some later stage, without his knowledge could leave Australia and not return. 

4. The matters which have to be considered in determining these passport and travel applications have been described in a number of cases in the Family Court of Australia.  Relevant here are the risk that the children will not be returned to Australia, the bona fides of the mother’s reason for travelling, the effect the travel and being away might have on the children’s relationship with their father, and whether the mother can provide an amount of money as a security which could be paid to the father in the event that she does not return to enable him or to assist him to recover the children.  Relevant too, is whether (country omitted) is a signatory to the Hague Convention and (country omitted) is not. 

5. The background is that the parties were married on (omitted) 2000, separated on 14 November 2007 and divorced on 9 May 2009.  Orders made on 9 February 2009 provide for the parents to have equal shared parental responsibility for the children, that the children live with the wife, and that they spend time with the husband every second weekend from Friday afternoon to Monday morning, every second Tuesday, half school holidays.  There is provision for summer vacation and for special days. 

6. X has not been seeing his father since the middle or later part of last year.  Annexed to one of the mother’s affidavits are a large number of emails passing between X and his father, in which X has various complaints or difficulties about time at his father’s house.  It is clear from the affidavits that the father considers that the mother has some, if not a considerable amount, of the responsibility for X ceasing to see him.  The mother, on the other hand, sees it as the father’s responsibility for the way he has treated X.  That is not something that can be resolved in this hearing.  Whatever the reason is, X’s relationship with his father is fractured to the extent that he is not seeing him.  The emails show that at least there is still some communication taking place.

7. The material before the court is the mother’s application filed on 17 April 2013 and her affidavit in support filed on that day.  She filed another affidavit on 30 May 2013.  The respondent, Mr Higgins, filed an affidavit and a response on 17 May 2013.  The mother’s living circumstances are that she owns a house; a property in Property A, which has a mortgage.  She is employed as an (omitted), so she has secure employment.  X is at secondary school; Y is close to completing primary school.  Last year X suffered, and may still suffer, from irritable bowel syndrome. He had lumps or infections around his bowel area.  That or consequences of it appears to be at least part of the cause of friction between X and his father; the consequences of it and his treatment. 

8. The risk that the mother will not return is that the person she wishes to visit in (country omitted), she describes in her affidavit of 17 April 2013 at paragraph 11 as “the man I deeply love”.  The father, somewhat to the consternation of the mother, had obtained access to the mother’s Face Book page and has exhibited part of a Face Book conversation or Face Book exchange the mother was having with another person, in which the mother suggests that she would like to leave Australia permanently, and describes Australia as a place which allows children to be abused or to be subject to violence.  The mother, to her affidavit, exhibits more of the exchange than the father does.  It appears that she was having a conversation or Face Book communication with a person who was sympathising with the position the mother says she is in.

9. The father’s case is that if the mother is permitted to travel to (country omitted) with the children the three people she, to use her own words, “deeply loves”, would then be in (country omitted) together.  There is a risk that she might not return.  The mother puts a number of things.  She owns a house in Australia, she is employed in Australia, the children are both at school in Australia, they have lived their whole lives in Australia, all three are Australian citizens and they have no right to live in (country omitted). 

10. While Ms Higgins’ affidavits do not annexe any material which shows the conditions for obtaining either permanent residence in (country omitted) or permission to reside there on a long-term basis, from the bar table she described a lengthy and complicated process which Mr Higgins said he did not dispute.  I can infer that neither Ms Higgins nor the two children, being Australian citizens, have the right to remain in (country omitted) without going through an application process which would include a variety of things, including, I would expect, health checks, reason for staying and ability to support themselves, while they were in (country omitted).  The mother says that she and the children will not be permitted to leave Australia unless they have a return airline ticket.  I can readily accept that they would need to have a return airline ticket. 

11. The mother also proposes lodging a bond of $2,000 as security for her returning the children to Australia.  She says she cannot lodge any greater security.  She has the expense of maintaining her house, maintaining herself and maintaining her children.  The husband pays $580 a month child support.  It is agreed by both Ms Higgins and Mr Higgins that he pays $580 child support and that he is some hundreds of dollars in arrears at the moment.  With two children of this age, one at secondary school and one at primary school, the cost of maintaining them far exceeds $580 per month. 

12. The mother puts several things about her return.  First, she and the children would have no right to remain in (country omitted), she is established here in Australia, she owns a house, she has employment and the children are at school in Australia.  One of the children, the older child, X, has particular medical needs which infer that the treatment he needs, the attention he needs, is much more readily available in Australia than it is in (country omitted).  While there might be some expense to parents in medical needs for a child, much of it will be borne from government sources, Medicare or State government sources.  In (country omitted), the mother and the children would have no right to access (country omitted) medical facilities, except perhaps on a temporary basis, pursuant to agreements between the two countries if they were there as visitors, but not on a permanent basis. 

13. I am satisfied that if the children travel to (country omitted) for one week of the 2013 September school holidays, they will be returned to Australia.  That then leaves the father’s concern that they might travel at another stage.  Part of the father’s concern is a conversation he said he had with Y about 18 months ago, where she said to him that if they lived in (country omitted), they could still come back and see him as before.  Y is seeing her father weekly, if not more.  X is not seeing him at all.  If they were living in (country omitted), the best that could be expected is school holidays.  However, that was a statement made by a child who, 18 months ago, was 10.  No doubt the children are aware of the mother’s love and affection for Mr G, who is living in (country omitted), and there may well have been some discussion in the household about living in (country omitted). 

14. On balance, I am satisfied that there is little risk that the mother will take the children to live permanently in (country omitted), even if she could obtain permanent status.  Again, while I have no material before me which shows precisely what the government of (country omitted) requires before permitting permanent or long-term residence in that country by a foreign national, I infer that they would, in the case of children under 18 require some information about the circumstances of the children.  I think it would be unlikely that the father would not know that there was an application made for the children to reside in (country omitted).  I am satisfied that there is virtually no risk that the children will not be returned after a 2013 September school holiday visit, and I am satisfied that there is very little risk that they will be removed from Australia to (country omitted) at some other stage. 

15. Relevant is the ages of the children.  Y will be 12 when they travel to (country omitted) in September 2013, the older boy, X, will be not far off 14.  Given that they are at school in Australia and have their connections in Australia, it is unlikely that they would participate in a scheme for them to be removed permanently from Australia without them having some communication with their father. 

16. There is another consideration too, and that is the children’s relationship with their father. The authorities show that the best interests of the children is the paramount consideration to be taken into account contained in s.60CA of the Family Law Act 1975 (Cth). The best interest considerations are in s.60CC, and the first of the primary considerations is the benefit to the children of a meaningful relationship with both parents. X at the moment has only, at best, an electronic communication relationship with his father. One would hope that that could be repaired. Y does have a good relationship with her father, seeing him on a weekly basis and probably communicating with him more often. It is clear that both of the children want to travel to (country omitted). The mother made application to the passports office for an administrative decision to obtain passports without the consent of the father, and both children wrote letters in support of that application. She annexes them to affidavits and there is other written material from the children which shows that they wish to travel to (country omitted). If they are prevented because of the opposition of their father, that is likely to damage their relationship with their father, make a reconciliation between X and his father that much more difficult and put some risk into a relationship between the father and Y.

17. I make brief reference to an email that the father annexes to his affidavit in relation to passports, it is addressed to the mother and it says:

    Firstly, the children have only ever asked me once to sign passports.  I explained to them why I would not.  I actually think it is a good idea for the children to travel, but the bottom line is that I do not trust you 

    It then refers to the documentation from social media that the mother wants to live in (country omitted) and run a business with Mr G, that “you hate this country”, that is, Australia 

    and the only thing stopping you is that I will not sign the children’s passports. 

    He then says he does not trust the mother to bring the children home.  He then says:

    I might consider signing passports if the following criteria is met: you are to encourage X that it is in his best interests to see his father and begin visiting as the court orders state;  I am to have copies of all plane tickets stating the day you leave and return;  the children are made available for me to contact every day;  I am to be given 60 days notice, as the court orders state;  if the travelling time coincides with mine, that time is to be made up within 12 months;  I am to be given all contact details of where you will be staying, Mr G’s address and the contact number, the contact details of his parents’ address and phone numbers.

    The father did, at some stage, indicate a willingness to sign passports or consider signing passports if certain conditions are met, which are with the exception of encouraging X to see his father, reasonable conditions.  While in that email there is his statement that he does not trust the mother to return, it is some indication, with perhaps some ambivalence by Mr Higgins about whether there is a risk or not. 

18. I am satisfied that it is in the children’s best interests that they should be permitted to have passports, and be permitted to travel to (country omitted).  The father in his email that I have just referred to referred to a provision in the order of 9 February 2009.  That is paragraph 7, which said:

    If either party wishes to spend more than one week with the children, then upon providing 60 days notice to the other parent, they be entitled to do so, provided the other parent had make up time within 12 months.

    I gather the mother proposes travelling at a time which will not interfere with the court ordered time with the father. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date:  20 August 2013