Irvine and Irvine (No 2)
[2019] FamCA 855
•20 November 2019
FAMILY COURT OF AUSTRALIA
| IRVINE & IRVINE (NO. 2) | [2019] FamCA 855 |
| FAMILY LAW – PARENTING – Where the parties are unable to agree upon the meaning and effect of certain parenting orders in the first reasons – Where there are three issues of dispute between the parties – Where there is no error in order 6(f) of the first reasons – Where the court is not satisfied that the words “preparatory schooling” should be restricted to preparatory schooling within the German system – Where the mother is at liberty to spend seven weeks with the child in Germany from December 2019 – Where order 8 does not prohibit the mother from travelling to Germany with the child for a six month period in 2020 – Order releasing the child’s passports to the mother who is to provide them to the father for the purpose of international travel. |
| Family Law Act 1975 (Cth) s 69ZN |
| Arthurman & Arthurman [2019] FamCAFC 214 Irvine & Irvine [2019] FamCA 627 Rand & Rand (2010) FLC 93-444 |
| APPLICANT: | Ms Irvine |
| RESPONDENT: | Mr Irvine |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Newman |
| FILE NUMBER: | TVC | 1322 | of | 2017 |
| DATE DELIVERED: | 20 November 2019 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 6 November 2019 |
REPRESENTATION
| SOLICITORS FOR THE APPLICANT: | Legal Aid Queensland |
| COUNSEL FOR THE RESPONDENT: | Mr Raeburn |
| SOLICITORS FOR THE RESPONDENT: | BJM Lawyers |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: | Newman Family Law |
Orders
That the Final Orders made by Justice Tree on 6 September 2019 be varied so that the following is inserted below in Order 9 thereof:
Passports/International Travel
9A.That the child’s passports, currently held in the Townsville Registry of the Family Court of Australia, be released to the mother forthwith and the mother thereafter hold the passports subject to the terms of these orders.
9B. That the parents do all acts and things as may be necessary to renew the child’s passports (Australian and German) from time to time.
9C. If either parent fails to do any such act or thing to renew the child’s Australian passport then pursuant to Section 11 of the Australian Passports Act 2005 (Cth) the Minister of the Department of Foreign Affairs and Trade forthwith issue an Australian passport in the name of the child, X, born … 2016 and renew the said child’s passport upon either parents application, without the necessity of obtaining the consent of the other parent for that purpose.
9D. That either parent be permitted to travel internationally with the child to Hague Convention Countries or such other countries agreed between the parents in writing (with the parent’s consent not to be unreasonably withheld) and/or pursuant to an Order of this Court, during times that the child is in their care pursuant to these orders and in that respect:
(a)the parent proposing to travel internationally with the child must provide the other parent not less than 60 days’ notice in writing prior to departure (whether from the Commonwealth of Australia or from Germany during time provided for in Orders 6 and 8 hereof) and the travelling parent must also provide to the other parent:
(i)a copy of the itinerary – including travel details (flights/method of travel) and dates and locations where the child will be residing during such period of travel;
(ii)evidence of return tickets;
(iii)a contact number whilst the child is overseas so that the travelling parent can facilitate a call to the child once a week whilst overseas or at all times as the child reasonably requests.
9E.That the child’s passports be utilised for the purpose of such international travel as follows:
(a)the father provide a written request for the release of the child’s passports at the time of the notice provided for in Order 9D above;
(b)the mother must release the child’s passports to the father not less than fourteen (14) days prior to the intended departure;
(c)the father must return the child’s passports to the mother within 3 days of returning to Australia (or to Germany in relation to the period of time provided for in Order 8).
The mother’s Amended Initiating Application filed 24 September 2019 is otherwise dismissed.
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 Irvine & Irvine 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 CAIRNS |
FILE NUMBER: TVC1322/2017
| MS IRVINE |
Applicant
And
| MR IRVINE |
Respondent
REASONS FOR JUDGMENT
Introduction
On 6 September 2019, for reasons then delivered,[1] I made both parenting and property orders (“the orders”) which determined the then extant proceedings between Ms Irvine (“the mother”) and Mr Irvine (“the father”). However subsequently, the parties have been unable to agree upon the meaning and effect of some of the parenting orders. Acting upon her construction of the orders, the mother has foreshadowed doing certain things. Acting upon his construction of the orders, the father has intimated that if the mother were to do those things, he would commence contravention proceedings against her. In light of that threat, on 17 September 2019, the mother commenced fresh proceedings, in which, by her Amended Initiating Application filed 24 September 2019, she sought orders, in effect, clarifying the meaning of the first reasons and the orders.
[1]Irvine & Irvine [2019] FamCA 627 (“the first reasons”).
The matter thereafter proceeded in a somewhat unorthodox way. Firstly, the father has never filed a Response to either the mother’s Initiating Application, or her Amended Initiating Application. Next, although on 30 September 2019 Baumann J listed the relief sought by the mother at paragraphs 1, 2 and 3 of her Amended Initiating Application before me by telephone on 6 November 2019, the nature of that hearing was not specified.
Ultimately, on 6 November 2019, in the course of that telephone hearing the parties agreed that I should act in an informal way so as to finally resolve the three matters in dispute between them.[2]
[2] Perhaps, par excellence, an example of the application of s 69ZN(7) of the Family Law Act 1975 (Cth).
At the conclusion of that hearing, I reserved my decision. This is that decision and the reasons for it.
Overview
As I have indicated, there are three matters of dispute between the parties. The first relates to the custody and release of the passports for their three year old only child. The second relates to the proper construction of the orders, insofar as they provide for the child to spend holiday time with the mother in Germany. The third relates to the proper construction of the orders, insofar as they provide an opportunity for the mother and the child to spend a block period of six months in Germany prior to her commencing school in Australia. I will deal with those matters in that order.
The passport issue
Order 1 of the first reasons discharged all previous parenting orders. One of the previous orders thereby discharged required the child’s passports to be held at the Family Court Registry at Townsville. It was common ground before me that, absent an order for their release, the Registry has refused to do so.
No party adverted to this potential issue at trial. Therefore the question of the child’s passports remains at large.
The child has two passports, being both Australian and German. The mother seeks that the passports be released to her. The father primarily sought that the passports continue to be held Family Court Registry in Townsville, or alternatively, that the parties hold one passport each, although after the hearing, circulated draft orders based upon the mother retaining the passports, in which he also sought the opportunity for international travel with the child for himself. Whilst the Independent Children's Lawyer initially supported the position of the mother, after the father circulated his proposal, indicated his agreement with the proposed orders, as did the mother, save she opposed the father being able to take the child overseas.
I am satisfied that there should be an order that the passports are released to the mother. She is not a flight risk in relation to the child. But more importantly, I am satisfied that, if the parties are required to agree in relation to the release of passports prior to the mother being able to travel, it is likely to prove to be an ongoing source of conflict between them. I say that because annexed to the mother’s affidavit read in these proceedings, were a series of communications, either initiated by the father, or sent by his solicitor, which unfortunately persuade me that he is likely to adopt an entitled and high handed approach when dealing with the mother, and any requirement for his consent to their release to the mother is likely to be used by him in a way which is not at all child focussed.
On the other hand, I am not satisfied that the mother is likely to so use the passports if she is the person who has custody of them. I am therefore satisfied that there should be an order releasing the passports to the mother, albeit that she should be obliged to provide them to the father for the purposes of international travel as he proposes.
The basis for the mother’s opposition to the father being able to travel internationally was simply that it was a matter not explored at trial. That is so, but by not dealing with it now, this would inevitably mean further litigation.
The father is not a flight risk with the child. There is no reason why he should not be able to travel overseas with her if he wants.
I am satisfied that the orders as circulated by the father in this respect are in the child’s best interest, and will make them.
School holidays
Order 6 of the first reasons provided as follows:
6.The Mother shall be at liberty to travel to Germany with the child in each second calendar year for a period of up to 7 consecutive weeks on the following conditions;
(a)The Mother to provide the Father with 60 days written notice of the dates upon which she intends to travel (‘the German holiday’);
(b)The Mother to provide the Father with a copy of the child’s travel itinerary and tickets;
(c)The Mother to meet the costs of the child’s travel;
(d)The Mother to provide the Father with the child’s contact details for the duration of the travel;
(e)The Mother to ensure the child has Facetime/Messenger/Skype or similar communication with the Father at least twice each week and in the absence of agreement on Tuesday and Friday;
(f)The German holiday may only occur in the December/January Queensland gazetted school holiday period in each alternate year and shall not occur during the first half of the December/January school holiday period in years ending in an even number,
(g)The Father to be entitled to nominate 2 additional periods of 14 consecutive days for the child to spend with him in the period prior to the child’s travel or in the 9 months following the child’s travel, provided those times do not consecutively join other school holiday periods provided for in these orders.
The mother seeks to travel with the child to Germany during the forthcoming December/January Queensland gazetted school holiday period. By reference to order 6(f), she says that 2019 is an odd numbered year, and therefore she may spend the first half of the December/January school holiday period in Germany, and proposes to do so. The father opposes that construction, and says that there is a mistake in the order, and that order 6(f) should refer to an odd numbered year, rather than an even numbered year. His rationale for that is that at trial, there was evidence before the court that the mother and child had spent Christmas in Germany in 2018, and therefore it was unlikely that I was intending, in pronouncing order 6(f), to permit the mother to do so in two consecutive years.
I am not satisfied that there is an error in order 6(f) as the father contends. It was up to the mother to choose which year to first avail herself of the period of time in order 6. If she did so on an even numbered year, then the price would be that she could only have probably something in the order of four or five weeks away, whereas if she first went in an odd numbered year, she could avail herself of the full seven weeks. Unsurprisingly, she has chosen the latter.
Therefore, pursuant to order 6, the mother is at liberty, as she has done, to avail herself of the opportunity of spending seven weeks of time with the child in Germany from December this year.
The six month period in Germany
Order 8 of the first reasons provided as follows:
8.That the mother may spend one period of extended time with the child in Germany on the following conditions:-
(a)No later than 30 June 2020 the mother may notify the father of her intention to enrol the child for a period of preparatory schooling in Germany that does not exceed 6 months duration from the time of departure from Australia to the time of return to Australia.
(b)The mother is to provide the father with a copy of the child’s travel itinerary and tickets.
(c)The mother is to meet the costs of the child’s travel.
(d)The mother is to provide the father with the child’s contact details for the duration of that period.
(e)The mother is to ensure the child has Facetime/Messenger/Skype or similar communication with the father twice a week and in the absence of the agreement on Tuesday and Friday.
(f)If the father elects to travel to Germany during this period, then for such periods as he may be in Germany, he shall give to the mother not less than 14 days written notice of his arrival and the place or places where he will be living.
(g)When the father is in Germany, he may spend such time with the child as may be agreed between the parents in writing, but no less than a period of 3 days in each week from Thursday afternoon at 4:00pm to Sunday morning at 9:00am provided that on days when the child is attending school he ensures that the child is delivered to or picked up from school on Thursday or Friday as the case may require.
(h)If the period of time that the father spends in Germany incorporates a period of school holiday time, then the child shall spend one-half of that period with the father.
(i)If the mother elects to implement this order, then in the year that she does so, she shall not also spend time with the child in Germany in accordance with order 6.
The mother proposes to spend that extended time in order 8 with the child in Germany between 5 April 2020 and 5 October 2020. The father opposes that, and says that properly construed, order 8 restricts the mother to taking the child to Germany in either 2021 or 2022, as the education available to the child in Germany in 2020 is not what is referred to in order 8(a) as “preparatory schooling.”
The relevant paragraphs which inform the construction of this order[3] in the first reasons are as follows:
83. On the other hand, Ms F was strongly attracted to an order which the mother was seeking (again, introduced very late) which would see the child, prior to commencing school, live in Germany for six months, in an effort to immerse her in German language and culture, so that it became an organic part of who she is. Ms F said that she was very much in favour of such cultural exposure, particularly given that the child is bilingual, and would only benefit from living in a country where German was the principal language. She said that bilingual children tend to progress better academically that non-bilingual children. The only practical issue she identified was to have the child’s six months in Germany commence at a time when the German pre-school was commencing, so that the child was part of the student mix from the outset, rather than coming in half way through, when children’s social relationships have already been established.
84. The father opposed the mother’s suggestion of six months in Germany, because he thought that it would be too testing for his relationship with the child. However a number of means were identified in the evidence by which that could be ameliorated. The first was the regular use of Skype, which although Ms F identified required hard work in order to achieve success, nonetheless could be done. She gave instances of defence service personnel being able to maintain good relations with their children, notwithstanding absence overseas. The other means she contemplated would be the father himself travelling to Germany, and spending time with the child whilst there. Whilst I do not recall the father directly saying that he could not do so, his business requirements may preclude that altogether, or see any such time there significantly restricted.
85. The father did not contend that the six month period in Germany would not be beneficial for the child; his sole concern was that it would impact adversely upon the child’s relationship with him. However in cross-examination by counsel for the mother, Ms F said that, so long as the mother put the effort in, there would be a smooth transition both to the child moving to spend time in Germany, and to the father re-establishing face-to-face time with the child back in Australia. I accept that evidence.
…
[3] As to which see Rand & Rand (2010) FLC 93-444 at [105] and Arthurman & Arthurman FamCAFC 214 at [35] to [40].
THE GERMAN EXPERIENCE
114. I have already discussed the mother’s desire to spend six months with the child prior to her commencing school in Australia in Germany.
115. Counsel for the father, in opposing that order, said that she was in the unfortunate position of arguing against a “lovely idea.” She identified that the cost of the “lovely idea” would be to potentially set back the father’s relationship with the child. I am not satisfied that is likely. Particularly, I have already identified that by creative use of technology, and by the father himself potentially travelling to spend time in Germany while the child is there, the relationship can well and truly be maintained.
116. Even if there be some period of disruption, nonetheless I am satisfied that the opportunity for the child to be immersed in German culture, language and society, such that it is experienced by her at a young age and thus becomes an organic part of her, too valuable an opportunity to let slip. The father concedes that the child will benefit from billinguality and having two cultures informing who she is, and I agree. I am not satisfied that is likely to be best achieved by the child having “holiday experiences” in Germany, but rather, living there for an extended period as an infant will give her a grounding that she would otherwise not be able to obtain. It is likely to be of a significant benefit for her for the balance of her life.
117. I am well satisfied that the orders in relation to the child spending six months in Germany prior to commencing school in Australia are in her best interests, and will make them.
Nowhere in those paragraphs does the phrase “preparatory schooling” appear. Rather in paragraph [83], the word “pre-school” was used, the phrase “prior to her commencing school in Australia” was used in [114] and [117], and at paragraph [116] I referred to “the opportunity for the child to be immersed in German culture, language and society” and “living there for an extended period as an infant”.
Inevitably, there are differences between the education system in Germany than Australia, although at the hearing on 6 November 2019, there was but limited evidence before me as to the nature of those differences. However I am far from satisfied that the words “preparatory schooling,” as informed by the reasons which underpinned order 8, should be construed as restricted to preparatory schooling, strictly so called, in the German system. There was little, if any, evidence as to the German education system before me at the trial, but plainly the intention of order 8 was to give the child an extended period of not only living in Germany, but also interacting with age appropriate peers, so as she would get an organic grounding in German culture and life from an early age.
I am therefore satisfied that order 8 does not prohibit the mother from availing herself of the six month period in 2020.
Conclusion
It therefore follows that the only orders which I need to pronounce relate the child’s passports, apart from otherwise dismissing the mother’s Amended Initiating Application filed 24 September 2019.
I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 20 November 2019.
Associate:
Date: 20 November 2019