Irvine & Irvine

Case [2021] FamCA 541

FAMILY COURT OF AUSTRALIA

Irvine & Irvine [2021] FamCA 541

File number(s): TVC 1322 of 2017
Judgment of: BAUMANN J
Date of judgment: 5 August 2021
Catchwords:

FAMILY LAW – PARENTING – Where the principles of Rice & Asplund are considered – Where COVID-19 international travel restrictions have prevented travel for the child with the mother as contemplated by final Orders made in 2019 – further orders made in relation to international travel.

FAMILY LAW – SPOUSE MAINTENANCE – Where the mother seeks further spouse maintenance after the expiration of a previous spouse maintenance Order – Application dismissed  
Legislation: Family Law Act 1975 (Cth), 60B, 60CC
Cases cited:

Beckham & Quarrington (2019) FLC 93-913

Gadzen & Simkin (2018) FLC 93-871

Garrety & Steyn (No. 2) [2021] FamCA 277

Irvine & Irvine [2019] FamCA 627

Irvine & Irvine(No. 2) [2019] FamCA 855

Langmeil & Grange [2013] FamCAFC 31

Marsden v Winch (2009) 42 Fam LR 1

Miller & Harrington (2008) FLC 93-383

Poisat & Poisat (2014) FLC 93-597

Rice & Asplund (1979) FLC 90-725

Searson & Searson (2017) FLC 93-788

SPS & PLS (2008) FLC 93-363

Walden & Cooper [2020] FamCA 104

Number of paragraphs: 62
Date of hearing: 16 July 2021
Place: Townsville
Counsel for the Applicant: Mr A Raeburn
Solicitor for the Applicant: BJM Lawyers
Counsel for the Respondent: Self-represented

ORDERS

TVC 1322 of 2017
BETWEEN:

MR IRVINE

Applicant
AND:

MS IRVINE

Respondent

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

5 AUGUST 2021

THE COURT ORDERS:

1.That the Reasons for Judgment delivered 5 August 2021 be published to the parties electronically, without the need for an appearance before the Court.

2.That by consent, as an alternative to the child, X born … 2016 (“the child”) spending seven (7) weeks each alternate year in Germany for a holiday (in accordance with Order 6 of the Orders dated 6 September 2019), and at the mother’s election, the child shall spend time with the mother in Germany for up to four (4) weeks during the Australian mid-term school holidays.

3.That for the purposes of Order 2 hereof, in the event the mother elects for the child to spend up to four (4) weeks during the Australian mid-term school holidays in Germany instead of the seven (7) weeks each alternate year for that year:

(a)the mother shall provide the father with sixty (60) days’ written notice of the dates upon which she intends to travel (“mid-year the German holiday”) which must include the whole period of the child’s end of term two (2) school holidays for the school the child attends at the time;

(b)the mother shall provide the father with a copy of the child’s travel itinerary and paid return ticket not less than thirty (30) days before departure;

(c)the mother shall meet the costs of the child’s travel;

(d)the mother shall provide the father with the child’s contact details for the duration of the travel;

(e)the mother shall ensure the child has FaceTime/Messenger/Skype or similar communication with the father…

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AGLC
Irvine & Irvine [2021] FamCA 541
Case
[2021] FamCA 541
Decision Date

CaseChat Overview and Summary

In the matter of *Irvine & Irvine*, heard by Baumann J, the parties were Mr Irvine (the applicant father) and Ms Irvine (the respondent mother). The dispute concerned parenting orders for the child, X, and a claim for spouse maintenance by the mother. The primary parenting issue arose from the impact of COVID-19 international travel restrictions, which had prevented the child from travelling to Germany for holidays as previously ordered in 2019.

The court was required to determine revised arrangements for the child's international travel with the mother, considering the ongoing travel restrictions. Additionally, the court had to consider the mother's application for spouse maintenance following the expiration of a previous order. The court also addressed specific parenting arrangements for special occasions and school holidays, and the father's application to restrain the removal of the child from Australia.

Baumann J applied the paramount consideration of the child's best interests, as mandated by the *Family Law Act 1975* (Cth). The court acknowledged the mother's understandable desire to spend time with her family in Germany, particularly given her lack of local support and English not being her first language. However, the court also noted the significant mistrust and lack of respect between the parents, which complicated co-parenting. The court made consent orders for modified international travel arrangements, allowing the child to spend up to four weeks in Germany during Australian mid-term school holidays, with specific notice and communication requirements. The court also made detailed orders regarding Christmas holidays and special occasions, and maintained existing restraints on international travel, including the child's name on the Airport Watch List.

The mother's applications for the father to contribute to overseas travel costs and for her spouse maintenance claim were dismissed. The court also dismissed the mother's application to limit the father's time with the child. Leave was granted for the mother to file an application for further international travel orders once COVID-19 restrictions were lifted, should the parents be unable to agree.

Orders

Orders of the court

TVC 1322 of 2017

BETWEEN:

MR IRVINE

Applicant

AND:

MS IRVINE

Respondent

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

5 AUGUST 2021

THE COURT ORDERS:

1. That the Reasons for Judgment delivered 5 August 2021 be published to the parties electronically, without the need for an appearance before the Court.

2. That by consent, as an alternative to the child, X born … 2016 (“the child”) spending seven (7) weeks each alternate year in Germany for a holiday (in accordance with Order 6 of the Orders dated 6 September 2019), and at the mother’s election, the child shall spend time with the mother in Germany for up to four (4) weeks during the Australian mid-term school holidays.

3. That for the purposes of Order 2 hereof, in the event the mother elects for the child to spend up to four (4) weeks during the Australian mid-term school holidays in Germany instead of the seven (7) weeks each alternate year for that year:

(a) the mother shall provide the father with sixty (60) days’ written notice of the dates upon which she intends to travel (“mid-year the German holiday”) which must include the whole period of the child’s end of term two (2) school holidays for the school the child attends at the time;

(b) the mother shall provide the father with a copy of the child’s travel itinerary and paid return ticket not less than thirty (30) days before departure;

(c) the mother shall meet the costs of the child’s travel;

(d) the mother shall provide the father with the child’s contact details for the duration of the travel;

(e) the mother shall 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; and

(f) all overseas travel shall comply with any international Covid-19 restrictions and requirements for travelling Australian citizens in place at the time of departure.

4. That the child shall spend time with the parents on special occasions as follows:

(a) With the father for Father’s Day (if the child is not already in the father’s care) from 6.00pm Saturday (the day before Father’s Day) to 6.00pm Sunday (Father’s Day); and

(b) With the mother on Mother’s Day (if the child is not already in the mother’s care) from 6.00pm Saturday (the day before Mother’s Day) to 6.00pm Sunday (Mother’s Day);

(c) If the child is not overseas for her birthday, with the parent she is not already in the care of, on her birthday from 1.00pm to 5.00pm.

5. That for the purposes of the end of term four (4) school holidays (Christmas school holidays):

(a) for the end of 2021 school term holidays, the child shall spend time with the father from 9.00am on 27 December 2021 to 4.00pm on 16 January 2022;

(b) from the 2022 end of school term holidays, if the child is in Australia, but would have ordinarily been with the mother overseas in that alternate year pursuant to Order 6(f) of the Orders dated 6 September 2019, the child shall spend time with the father from 9.00am on 27 December to 4.00pm on 16 January;

(c) in the alternate year when the child would ordinarily be in Australia, the child shall spend time with the father from 4.00pm on 23 December to 4.00pm on 12 January; and

(d) otherwise, when not in the care of the father, the child will be in the care of the mother.

6. That changeovers that do not occur at school shall take place at McDonalds, Suburb K (also known as McDonalds Location L).

7. That if either parent wishes to enrol the child in any extra-curricular activity which would require the other parent to facilitate the child’s attendance at that extra-curricular activity whilst the child is in their care (be that during school terms, weekends or holidays), before the child is enrolled in such extra-curricular activity, the parents are to agree to the child participating in such extra-curricular activity, and then shall use their best endeavours to ensure the child attends the activity as required.

Airport Watch List

8. That unless in accordance with the Orders dated 6 September 2019 or these Orders, or else subject to the written consent of both parents, each parent, MR IRVINE born … 1980 and MS IRVINE born … 1987, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the taking or sending of the child from the Commonwealth of Australia.

9. That the Deputy Marshal of all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these Orders, including all things necessary to include and retain the child’s name on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain the child’s name on the Watch List until the child attains the age of 15 years (on 4 July 2031), or authenticated written consent of both parents.

10. That the mother’s application to vary Orders 6 and 8 of the Orders dated 6 September 2019, such that the father contribute to the costs of the child’s overseas travel, be dismissed.

11. That the mother’s application that the child’s time with the father not increase past five nights per fortnight in accordance with the Orders dated 6 September 2019, be dismissed.

12. That the mother’s application for spouse maintenance be dismissed.

13. That all outstanding Applications and Responses be otherwise dismissed.

14. That upon Covid-19 international travel restrictions being lifted in Australia, in the event the parents are unable to agree as to further arrangements for the child to travel to and from Germany with the mother, the mother have leave and is at liberty to file an Initiating Application in relation to further orders for international travel for the child.

15. That should either parent file a new Application within three (3) years from the date of these Orders, such Application be listed, if possible, before the Honourable Justice Baumann for final determination.

Note: The form of the order is subject to the entry in the Court’s records.

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 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

Statements of fact hereafter should be construed as findings of fact.BACKGROUND It is clear that since the decision of Tree J delivered in September 2019, the mother has felt often overwhelmed and despondent. Although the mother was able to exercise some time overseas in Germany for an extended period around Christmas 2019 in accordance with the said Orders J, the onset of the global pandemic in Australia from February/March 2020 have made the other Orders of Tree J relating to overseas travel by the child and the mother to Germany (including, importantly, the right for the child under the said Orders to spend six months in Germany before the child commenced school in Australia) has clearly not been able to be put into practical effect. This has created enormous stress upon the mother who, although it appears she abandoned her relocation application before the hearing conducted by Tree J, nonetheless, on more than one occasion, gives evidence in this case which makes it clear she desires to spend significant time (if not relocate) to Germany. Her position is absolutely understandable bearing in mind that, although she is very articulate in English and a clearly intelligent lady, English is not her first language; she has no family support here in Australia and she desperately misses her motherland. It is a theme of this litigation reflected in the material of the mother, although many aspects of her affidavit were ruled inadmissible as being irrelevant in accordance with Exhibit 1 (and where certain objections were taken by Counsel for the father), that she feels that she has been under constant bombardment from the father during the course of the litigation. The father is a professional by occupation who retained a solicitor and Counsel for the hearing. The mother feels totally disadvantaged by the ability of the father to marshal these resources and generally regards the family law system in Australia as unfair. At the hearing before me on 16 July, I allowed the mother the support of a McKenzie Friend, but she still, at one stage (particularly when discussing the airport watch issue) became very distressed and highly emotional; started shouting at the Bench and continued to assert that this is a “domestic violence case”. As I say, the mother believes the father’s actions during and since the trial before Tree J amount to coercive and controlling behaviour towards her. I saw both parties under cross-examination and although the evidence demonstrates they have been able to reach some compromises from time to time on small issues by negotiation, it is clear, high levels of mistrust and a general lack of respect for each other exist in this post-separation relationship. The mother points to these issues and says that this makes any form of “co-parenting” virtually impossible. I will turn to this issue later in these Reasons.PRINCIPLES TO BE APPLIED In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Family Law Act1975 (Cth) (“the Act”) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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