Jefferts & Chester

Case [2023] FedCFamC1F 40

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Jefferts & Chester [2023] FedCFamC1F 40

File number(s): MLC 12584 of 2020
Judgment of: HARTNETT J
Date of judgment: 8 February 2023
Catchwords: FAMILY LAW – PARENTING – Interim parenting orders – Where the father seeks the child travel overseas for a period of 16 days for a paternal relative’s birthday – Where the father seeks a passport for the child – Where the mother seeks the child stay in Australia – Where the child has never travelled internationally – Where the paternal family is of Country B heritage – Where the entirety of the paternal family, save one individual, will be travelling to Country B for the occasion – Where the child has spent time with the father since birth on a frequent and regular basis – Where orders made for travel of a lesser period of time – Where orders are made for the father to obtain a passport for the child.
Legislation: Family Law Act 1975 (Cth) Part VII, ss 60B, 60CA, 60CC, 65AA, 65D
Cases cited:

Deiter v Deiter [2011] FamCAFC 82

George v George [2013] FamCAFC 182

Goode & Goode (2006) FLC 93-286

Mazorski v Albright (2007) 37 Fam LR 518

McCall v Clark (2009) FLC 93-405

SS v AH [2010] FamCAFC 13
Division: Division 1 First Instance
Number of paragraphs: 52
Date of hearing: 1 February 2023
Place: Melbourne
Counsel for the Applicant: Ms Mallett SC and Mr Marchetti
Solicitor for the Applicant: Schembri + McCluskys
Counsel for the Respondent: Ms Taylor
Solicitor for the Respondent: Keating Avery Solicitors

ORDERS

MLC 12584 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR JEFFERTS

Applicant
AND:

MS CHESTER

Respondent

order made by:

HARTNETT J

DATE OF ORDER:

8 February 2023

THE COURT ORDERS THAT:

1.Within seven (7) days of a request by the father to the mother, the mother shall do all such acts and things and sign all such documents as may be necessary or required to obtain an Australian passport for the child, X born 2019 (“the child”), including signing and returning to the father all passport application documents and consent forms and any other associated documents that may be required AND in the event that the mother fails or refuses to comply with this Order then the father be allowed by this Order to apply pursuant to section 11 of the Australian Passports Act 2005 (Cth) to permit the renewal and/or issue of an Australian passport for the child without requiring the consent of the mother with the Court hereby being satisfied that such Order is in the child's best interests.

2.UNTIL FURTHER ORDER the father shall retain possession of the child’s passport.

3.The child is permitted to travel to Country B on or before 3 July 2023 for the purpose of a paternal relative’s birthday celebration for a period of no greater than 10 days including travel.

4.For the purpose of the 10 day travel period, the child…

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AGLC
Jefferts & Chester [2023] FedCFamC1F 40
Case
[2023] FedCFamC1F 40
Decision Date

CaseChat Overview and Summary

The case before the Court involved a dispute between the father and the mother regarding the proposed travel of their child, X, to Country B for a period of 16 days to celebrate the birthday of a paternal relative. The father sought to obtain a passport for the child for the purpose of this trip, which the mother opposed, arguing that it would not be in the child's best interests. The father, born in Country K, and the mother, born in Australia, had never married but had been in a relationship since late 2017. They separated in April 2020, and the child was born in 2019. The parties had implemented a four-day rotation for the child's time with the father, but the father sought to revert back to this arrangement, which the mother rejected.

The legal issue before the Court was whether the proposed 16-day trip to Country B would be in the best interests of the child, considering her young age and the fact that she had never spent more than a week away from her mother or travelled internationally. The Court needed to balance the relevant matters outlined in section 60CC of the Act, including the child's need to have a meaningful relationship with both parents and her paternal family, as well as the potential emotional and psychological impact of such a long trip on the child.

The Court concluded that a period of 16 consecutive days away from the mother was too long for the child, who was only four years old. However, it was in the child's best interests to engage with her Country B culture through her paternal family. The Court ordered that the child be permitted to travel to Country B for up to 10 nights, enabling her to spend time with her extended paternal family and engage in the Country B culture over an extended period of eight days. The Court also ordered that the child communicate with the mother daily by FaceTime between 6.00pm and 6.30pm Country B time during the proposed travel period.

The Court considered the untested Family Report of Dr C, which recommended that each party be permitted to travel with the child interstate and overseas for lengths of time to be agreed, and not to exceed 10 nights until the child attains the age of six years, providing appropriate notice is given and the itinerary is fully available. The Court found that the mother would be able to provide the necessary reassurance and comfort to the child, given her age, as to such travel. The Court also noted that there were no current orders as to any communication between the child and the other parent, and it was in the child's best interests that communication between the child and mother occur daily during the proposed international travel.

Orders

Orders of the court

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Background

Background to the litigation

A remaining interim issue which the parties sought to agitate before the Court but which was not particularised in interim orders sought was whether the applicant father (“the father”) could take the parties’ child, X (“the child”), born 2019, aged three years but to be four years at the time of the proposed travel, to Country B for a period of 16 days. The purpose of the travel is to celebrate the birthday of a paternalrelative. The extended paternal family (save for one individual who was not travelling) would be in attendance. In order to undertake such travel the father sought to be permitted to obtain a passport for the child. The respondent mother’s (“the mother”) position was that such trip would not be in the child’s best interests. BACKGROUND The father was born in 1982 in City J, Country K and is aged 40 years. He currently resides in the former family home in Suburb H and is employed in a business owned by his family. The mother was born in 1996 in Australia and is aged 26 years. She resides in City G with her new partner, Mr L (“Mr L”) and their daughter who is very young. She is employed as an educator. The parties commenced their relationship in late 2017 and commenced cohabitation on the father’s evidence in late 2017. The parties were never married. The parties separated in April 2020. The child was born in 2019. It was the mother’s evidence that in early 2020, she relocated from Melbourne to N Town, Victoria. The father’s evidence differs slightly; on his evidence, he claims the mother relocated with the child to her sister’s property near O Town. At the time of separation, the parties implemented a four-day rotation for the child’s time with the father, at the father’s request. On 8 September 2020, the parties participated in mediation and agreed the child would live with the mother during the week and spend time with the father on weekends. The father in late 2020, however, sought that they revert back to a four-day rotation. The mother rejected that proposal. In late 2020, the father claims the mother provided him with a further proposal being a reduction in his time spent with the child. A short time later, in 2020, the mother advised the father she would be ceasing time between the child and the father until age appropriate orders were in place. Two days later, the father alleged the mother refused to bring the child to a changeover in P Town. The mother’s reasoning included that the child “needed a break”.[1][1] Father’s Outline of Case filed 31 January 2023, p.2. On 13 November 2020, the father’s solicitors wrote to the mother requesting that the mother resume the child’s time spent with the father in accordance with the previous parenting agreement as reached at mediation. This agreement provided for the child to be in the father’s care on weekends. On 17 November 2020, the father filed an Initiating Application for Final Orders in the then Family Court of Australia, now Federal Circuit and Family Court of Australia (Division 1) seeking final and interim parenting orders as well as final property orders.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Dr C recommends that “each party be permitted to travel with the child interstate and overseas (from 2023 onward) for lengths of time to be agreed, and not to exceed 10 nights until the child attains the age of six years, providing appropriate notice is given and the itinerary is fully available. It is preferable this travel occurs during schedule term holiday periods. On these occasions, [X] be permitted to communicate virtually with her non-resident parent every second night”.[7] [7] Dr C affidavit filed 21 November 2022, p.33.CONCLUSION In reaching a decision about what orders are in the child’s best interests, the Court must balance the relevant matters in s 60CC of the Act. A period of 16 consecutive days with her father is untested and is a significant period of time for the child who is a young child. Further, the fact that the father proposes international travel is also a significant change for the child (the child has never been away from her mother for a period of greater than a week). The child has however, a secure relationship with each of her parents and does not appear to have any separation anxiety when away from one parent. I accept that it is in the child’s best interests that she be engaged in her Country B culture with her paternal family, however this does not outweigh the child’s other needs and interests. An engagement with her Country B culture can be experienced by the child sufficiently in accordance with the advancement of her best interests by spending a lesser period of time in Country B than that proposed by the father. The father’s travel with the child is supported by the untested Family Report for a period of up to 10 nights. Dr C is of the view however that the mother will need to provide the necessary reassurance and comfort to the child, given her age, as to such travel. I am of the view that the mother will be able to support the child in this way albeit she does not consent to the travel that will be undertaken by the child. The mother has shown herself to be well capable of promoting the child’s relationship with the father and acting in the child’s best interests. I find that ten days including travel, is a more appropriate absence from the mother for the child given the child’s age and current spend time arrangements. I also conclude that this length of time will enable the child to spend time with her extended paternal family and engage in the Country B culture over an extended eight days of celebrations. I will order that the child communicate with the mother daily by FaceTime between 6.00pm and 6.30pm Country B time with the mother to initiate such communication. The time difference between Melbourne and Country B is several hours. Neither party specifically addressed the Court on communication between the child and the mother during the proposed travel period. There are no current orders as to any communication between the child and the other parent. In my view, given the child’s young age and the length of time for which she will be away from her home in City G, and her mother’s presence, it is in the child’s best interests that during the proposed international travel communication between the child and mother occur daily.

Ratio Decidendi

Legal Principle Established

Those relevant s 60CC of the Act matters have been considered by me and are included below. CONSIDERATION At the hearing, the father proposed that he be permitted to take the child to travel to Country B to celebrate the paternal relative’s birthday for 16 days (inclusive of travel time to and from Australia). Upon arrival in Country B, it was proposed that in mid-2023 the paternal family will gather for three days in City Y for a ‘gathering of the clan’. The paternal family will then travel to Z Region, where the family home is located, for five days to celebrate with another side of the paternal family. The paternal family will then travel to City AA for three days, return to Z Region for another two days before commencing their return home to Australia. As there are no direct flights to Country B, the trip will involve a flight to New Zealand, approximately a two hour delay, and another flight to Country B. A total of several hours together with transport to and from airports and further airport wait time. Senior counsel for the father sought the child be permitted to accompany the father to this celebration. She submitted that the child has a broad wider family with a strong cultural heritage and thus it was important that the child attend the paternal relative’s birthday celebration. Nearly all of the paternal family, including those who reside in Country K, will be in attendance at the birthday ‘festival’. The mother did not agree to the child travelling to Country B. Counsel for the mother submitted that the trip length, in addition to the flight time, was too long for a child of just four years of age, and noted the trip included multiple airports and crossing the international dateline. Further, the child has not spent more than a week in the father’s care since the separation of the parties, nor has she travelled internationally. It was the mother’s position that this trip is more about meeting the needs of the paternal relative, than the needs of the child. The child does not have a passport. It is common ground that the child benefits and will continue to benefit from having a positive and meaningful relationship with both her parents. No issues of risk were raised by either party. Both parties are involved in the long-term decision making regarding the child and care for the child’s needs. The father pays child support as assessed with the mother and step-father otherwise financially supporting the child. The child’s BB Region culture, the paternal family being of Country B background, is supported by both parties with the father having enrolled the child in a Country K language pre-school, which the child has attended for some time. The father speaks the language of Country K with the child when she is in his care. The untested evidence as contained in the Family Report of Dr C (“Dr C”) dated 19 July 2022 and annexed to her affidavit filed 21 November 2022, noted that the child had been “meeting all developmental milestones and that she is generally a healthy, happy child who of late, has been displaying some dysregulated behaviour, including aggression”.[5] Dr C saw the parties and child on 15 June 2022. Dr C noted that the parties demonstrated cooperative parenting, had a “seamless” changeover, and that there was good communication between the parties. In addition, Dr C noted that “the travel time between homes in not necessarily demanding for [the child] and can be a relaxed parent-child experience but the associated adjustment to her changed environment may add to her emotional and psychological load”.[6] Those environment factors were noted in the report to be the addition of a new sibling, the change in caregivers (Mr S, the mother’s former partner, to Mr L), and change in settings. [5] Dr C affidavit filed 21 November 2022, p.10. [6] Dr C affidavit filed 21 November 2022, p.29.