Jewell and Tinsley

[2016] FCCA 3074

FEDERAL CIRCUIT COURT OF AUSTRALIA

JEWELL & TINSLEY [2016] FCCA 3074

Catchwords:
FAMILY LAW – Interim parenting – overseas travel.

Legislation:

Family Law Act 1975, s.65Y

Cases cited:

In the Marriage of Kuebler (1978) FLC 90-434

Line & Line (1997) FLC 92-729

Yilmaz & Yilmaz [2010] FMCAfam 791

Applicant: MS JEWELL

Respondent: MR TINSLEY

File Number: DGC 1204 of 2015

Judgment of: Judge Harland

Hearing date: 25 November 2016

Date of Last Submission: 25 November 2016

Delivered at: Dandenong

Delivered on: 30 November 2016

REPRESENTATION

Counsel for the Applicant: Mr Nicholson

Solicitors for the Applicant: Davison Family Lawyers

Counsel for the Respondent: Mr Arnold

Solicitors for the Respondent: AAB Lawyers

Counsel for the Independent Children's Lawyer: Mr Taghdir

Solicitors for the Independent Children's Lawyer: Taft Lawyers

ORDERS

1. The Application in a case filed on 18 November 2016 is dismissed.

2. The response to an application in a case filed on 23 November 2016 is dismissed.

3. The Independent Children’s Lawyer shall provide a copy of Dr E’s report to Ms L forthwith if he has not already done so.

4. The proceeding is adjourned for final hearing on a date to be allocated by Judge Baumann in the call over listed on 20 February 2017 at 11.00am in Dandenong.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1204 of 2015

MR TINSLEY

Applicant

And

MS JEWELL

Respondent

REASONS FOR JUDGMENT

1. The mother filed an application in a case on 18 November 2016 seeking permission to travel with the three children of the relationship to (country omitted). The children are X born (omitted) 2002, aged 14, Y born (omitted) 2007, aged 9 and Z born (omitted) 2010, aged 6.

2. The mother is from (country omitted). She has many family members living there including her current husband and her father. She has not seen her husband for 14 months. They have applied for a spouse visa for him to come to Australia. She says she has been advised that it could take another 6 months before his visa is determined.  She says they applied for a temporary visa for her husband and his children to travel to Australia but was advised that a temporary visa would not be granted whilst the spouse visa is being determined.

3. The mother says that she is suffering because she misses her husband and her father. She tries to protect the children from her sadness which they are being impacted by it.  She says that her father lives in both (country omitted) and Sydney. He returned to (country omitted) a month ago as his father died. She says she has not seen her father for several months.

4. She wants to take the children to (country omitted) for 2 months over the summer holidays. Her niece is getting married on (omitted) 2017. She wants her children to experience a traditional (country omitted) wedding.

5. Her proposal is that she and the children will stay with family members at all times and that she and the children would return to Australia within a few days of school commencing. She has not booked the flights.

6. The parties entered into final property orders by consent on 1 July 2016. The wife received a cash payment of $300,000. She offers a security of $250,000.

7. The father opposes the mother’s application. He says there is a real risk that the mother will not return to Australia with the children. He thinks the mother would be willing to forfeit the surety.

8. The mother says that she has not purchased a property with her proceeds of settlement as she has limited capacity to borrow given her work history and her current part time causal employment. The sum is not great enough to purchase a home in Melbourne without a mortgage. I also note that the settlement only took place a couple of months ago. The mother says she is living in rental accommodation owned by her mother.

9. The father’s concerns need to be seen in the context of the fact that he has not seen the children since January 2016 and the parties have just started the process of reportable family therapy with Ms L. The parties and the children have each attended Ms L for one appointment. There are three appointments scheduled for December 2016.

10. The father expresses concern that Ms L emailed her schedule of appointments to the parties on 15 November but the mother makes no reference to this in her affidavit sworn on 18 November. The mother modified her proposal. The father expressed concern that family therapy would be delayed. The mother says the delay is not significant. During the hearing I expressed concern about the family therapy being interrupted when it has only just begun. The last scheduled appointment is 23 December 2016. She wants to travel shortly after that and stay until after her niece’s wedding. If the Court is not willing to allow the children to go overseas for that length of time she seeks to go for whatever period of  time the Court will allow.

11. The Independent Children’s Lawyer expressed concern about the family therapy being delayed but otherwise did not have a strong view about the proposed travel. He observed that generally overseas travel is a good thing for children and in this case the children will be visiting family and have a chance to participate in their (country omitted) culture.

12. The prospect of the mother travelling without the children was raised. The mother has travelled to (country omitted) without the children previously but that was when the children were able to stay with the father.

13. The father says he talked to Ms L about the trip. She expressed concern that X who the father says is particularly aligned with the mother, would be unhappy about not being able to go and may blame the father for her mother’s unhappiness at not being able to go. This could further damage their relationship. The father says based on this he was considering agreeing to the trip.

14. He then received Dr E’s psychiatric assessment of both parents and based on this strongly objects to the children travelling to (country omitted).

15. The father says that the children’s paternal or maternal grandmother or other family members could look after the children whilst the mother visits (country omitted). He is concerned that because the mother is so unhappy and misses her husband so much that there is a greater risk that she will not return to Australia.

16. There was a violent incident on 1 January 2016. The children were present. The children have not seen the father since then. The interim consent orders made on 1 July 2016 provide for the father to spend no time with the children, the parents to be psychiatrically assessed by Dr E and for the family to engage in reportable therapy.  The father acknowledges that on 1 January 2016 he lost control and punched the mother in the shoulder, face and head. This occurred at a changeover and the children were present. He was charged and pled guilty. He has completed a men’s behavioural change course.

17. The father says the mother does not have strong connections to Australia any longer. She has not purchased a property with her settlement money; she is working casually 12 hours a week as a (occupation omitted) and is estranged from her family in Australia.

18. Although the mother has offered $250,000 as surety, which is a far greater sum than usually offered in these types of cases, he fears that the mother would be willing to forgo that sum. The father says when he met the mother’s husband in 2013/2014 he had his own home and business. He is concerned that the mother would not need her funds from the property settlement to re-establish herself with the children and her husband in (country omitted).

19. Dr E’s report outlines the history the mother gave him which depicts an abusive relationship with the father where she was subjected to family violence and the children were exposed to it. She says the children are traumatised and do not want to see their father. She does not believe the children would be safe with the father.

20. Significantly she refers to being ostracised by her family both in Australia and (country omitted). Her brother does not speak to her. Her mother disapproved of her marriage. She was not invited to her father’s 70^th birthday recently. She has been ostracised by her church.

21. Dr E diagnosed the father with adjustment disorder with depressed and anxious mood in remission. He diagnosed the mother with major depressive illness with anxiety, childhood sexual abuse (PTSD) and current PTSD partly in remission following the assault by the father.

22. Dr E expressed concern about the mother whose pre-existing trauma (due to being sexually abused as a child by the son of a child care worker) was aggravated by the father’s assault and has spilt over into the relationship with the children. He says it is understandable that the mother is wary of the father and does not trust him and that the children would have been affected by their parents’ conflict and witnessing their father assault their mother but expresses concern that the children are “vulnerable to what appears to be an alienating dynamic emanating from their mother which was apparent at interview.”

The applicable legislation

1. In order to travel with the children to (country omitted) the mother either needs the father’s consent or a Court order.[1]

   [1] See Family Law Act 1975 (Cth), s.65Y.

2. The orders the mother seeks are parenting orders, therefore the best interests of the children are paramount. Several authorities have discussed relevant considerations when considering an application to travel overseas with children. These include: In the Marriage of Kuebler (1978) FLC 90-434 and Line & Line (1997) FLC 92-729. Halligan FM (as he then was) reviewed the authorities which predated the 2006 amendments to the Family Law Act 1975 (Cth) in Yilmaz & Yilmaz [2010] FMCAfam 791. Justice Bennett identified a list of relevant factors to consider as follows:[2]

   [2] Bennett V, “The International Family: How to Secure Rights in Respect of Children Overseas” (Paper presented at 14th National Family Law Conference, 18-22 October 2010, Canberra),p 21.

   ·    travel alerts for the proposed destination (eg of the removing parent’s family life in Australia;

   ·    the economic stability of the removing parent in Australia;

   ·    the age of the child – it is easier to disappear and hide with younger children;

   ·    history of compliance with orders;

   ·    level of conflict between the parties;

   ·    personal connections the removing parent has with the country they wish to take the child to;

   ·    details of the travel plans; and

   ·    whether or not the proposed destination is a signatory to the Hague Child Abduction Convention.

3. Not all of these considerations have been raised by the parties and not all are relevant to this case.

4. The factors that are relevant to my determination are the comparative strengths of the mother’s connections with Australia and (country omitted), the parents relationship, the relationship between the father and the children and the fact that (country omitted) is not a signatory to the Hague Convention On Civil Aspects of Child Abduction.

Conclusion on the application in a case

1. The mother has bona fide reasons for wanting to take the children to (country omitted). It would be beneficial for the children to spend time with family in (country omitted) and be exposed to their (country omitted) cultural heritage. The mother is willing to provide a significant surety. These are all factors in favour of allowing the mother to take the children to (country omitted) for a holiday.

2. (country omitted) is not a signatory to the Hague Convention on Civil Aspects of Child Abduction. The mother feels isolated in Australia and estranged from family members here. She has a longing for (country omitted) which is where her husband is. The status of her husband’s migration application and the likelihood of its success is uncertain. These factors weigh against the mother’s application. These factors combined with the early stage of family therapy and the importance of that process weigh against allowing the mother’s application at this time. This does not mean that the mother will not be successful in applying for the children to visit (country omitted) in the future.

3. The father seeks orders that the mother engage in treatment recommended by Dr E and that she provide evidence of that. Dr E has not made any treatment recommendation in his report. It is clear from the report that both parents have received psychological treatment in the past. The mother is being treated currently and is taking anti-depressant medication which makes her tired. It is not clear whether the mother is currently seeing a psychologist or is under the care of her General Practitioner. She will be in a position to provide evidence from her treaters. I will not make the orders the father seeks.

4. If Ms L has not been provided with a copy of Dr E’s report. I will order the Independent Children’s Lawyer to do so.

Future Directions

1. I am mindful that the mother is emotionally fragile and she will find it difficult not being able to take the children to (country omitted) at this time. When the matter is next in Court the family therapy will be further progressed. I will list this matter in the call over of matters for allocation of final hearings at 11.00am on 20 February 2017.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  30 November 2016