Jorie & Jorie
[2023] FedCFamC1F 866
•9 June 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Jorie & Jorie [2023] FedCFamC1F 866
File number(s): PAC 2037 of 2019 Judgment of: CURRAN J Date of judgment: 9 June 2023 Catchwords: FAMILY LAW – PARENTING – interim hearing – where mother seeks to take the child on overseas holiday to United States of America – where travel to be with maternal grandparents – where father has concerns she will not return – where mother currently holds sole parental responsibility – where travel is in child’s best interests – orders made permitting travel – orders made for mother to obtain passport for child – orders made for child to be reinstated to Watchlist upon return Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 65D, 69ZL
Passports Act 2005 (Cth) s 11
Hague Convention on the Civil Aspects of International Child Abduction
Cases cited: Deiter v Deiter [2011] FamCAFC 82
Goode & Goode (2006) FLC 93-286
Division: Division 1 First Instance Number of paragraphs: 71 Date of hearing: 9 June 2023 Place: Sydney Solicitor for the Applicant: Mr Jones of Adam Jones Solicitor The Respondent: The respondent father appeared in person Solicitor for the Independent Children's Lawyer: Ms Soliman of Legal Aid NSW Parramatta ORDERS
PAC 2037 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS JORIE
Applicant
AND: MR JORIE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CURRAN J
DATE OF ORDER:
9 JUNE 2023
THE COURT ORDERS THAT:
1.The mother 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 father with the Court hereby being satisfied that such Order is in the child's best interests.
2.UNTIL FURTHER ORDER, the mother shall retain possession of the child's passport.
3.The child is permitted to travel to USA with her mother and the maternal grandparents on specified dates for the purpose of the holiday for a period of no greater than 8 days including travel.
4.That for the purpose of order 3 above, Ms Jorie born 1985 is permitted to remove the said child X born 2016 from the Commonwealth of Australia for the specified period.
5.That upon the return of the child into the Commonwealth of Australia and until further order, or subject to the authenticated consent of all parties required to provide consent by Part VII of the Family Law Act 1975, each party, Ms Jorie born 1985 and Mr Jorie born 1985, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child X born 2016 from the Commonwealth of Australia;
6.AND IT IS REQUESTED that the Australian Federal Police give effect to order 3 by removing the name of the said child from the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia prior to the departure date.
7.AND IT IS REQUESTED that the Australian Federal Police give effect to order 4 by including the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watchlist from the return date, until the Court orders its removal, or with consent of all parties.
THE COURT FURTHER ORDERS THAT:
8.The mother shall send the father photos of X during the holiday to the email address …@....
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jorie & Jorie has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTCURRAN J:
These reasons for judgment were delivered orally and have been corrected from the transcript.
Consistent with the provisions of s 69ZL of the Family Law Act 1975 (Cth) ("the Act") I set out my reasons in short form.
INTRODUCTION
This application concerns the child of the relationship, namely X born in 2016 ("the child") who is 6 years of age. She is the child of Mr Jorie ("the father") and Ms Jorie ("the mother"). The mother and the child live in Australia, and as does the father. The parties separated in or around March 2018. The father disputes this as he alleges the separation was around 2019.
There are serious allegations of family violence in this matter.
Ms B provided a single expert report dated 26 May 2021 ("the single expert report") where she recommended that:
(a)The child should live primarily with the mother;
(b)The mother should have sole parental responsibility for the child;
(c)The father be restrained from contacting the mother through any means;
(d)The court consider the child's time with her father either
(i)Cease now until the father engages in the recommendations and demonstrates change; or
(ii)That the child spends formal supervised time with the father (in a formal contact centre) whilst the father concurrently engages in the recommendations;
(e)Over the next 12 months, the father engage certain conduct including psychological therapy and abstinence use of alcohol;
(f)Mental health providers working with the father should be provided with a copy of the single expert report;
(g)If the father demonstrates appropriate behaviour in supervised visits and regulates his emotions, then he could move to unsupervised time;
(h)If the father does not complete the above recommendations, the child's time with the father should cease; and
(i)The mother continue to engage in therapy.
I have not addressed all of the recommendations of the single expert.
On 4 October 2022 interim parenting orders were made for the father not to spend the previously ordered supervised time with the child, but in fact, the father had ceased spending time with the child some time earlier.
The matter is listed for final hearing 21 - 23 February 2024 before me.
The single interim issue which the parties sought to agitate before the court today is whether the mother is permitted take child to the United States of America ("USA") for a period of 8 days in August this year. The purpose of this holiday is to travel to a theme park in State C, and then State D, with the mother and maternal grandparents.
In order to undertake such travel the mother sought to:
(a)Be permitted to obtain a passport for the child, because her passport, on the evidence of both parties, has expired;
(b)Remove the child from the watch list for the purposes of the travel; and
(c)Be permitted to travel.
The father position was that such a trip would not be in the child's best interests for a number of reasons that I will address below.
The Independent Children's Lawyer's position, set out in the Case Outline Document filed on 13 April 2023, supports the mother's application.
MATERIAL RELIED UPON
The mother
The mother relied upon the following documents:
(a)Application in a Proceeding sealed on 2 June 2023;
(b)Her affidavit sealed on 31 May 2023;
(c)Her previous affidavit filed on 1 December 2022; and
(d)A Case Outline Document filed 8 June 2023.
I grant the mother leave to rely on both of those affidavits.
The father
The father relied upon the following documents:
(a)Response to Application in a Proceeding filed 8 June 2023; and
(b)His affidavit filed 8 June 2023.
The Independent Children’s Lawyer
The Independent Children's Lawyer relied upon the helpfully prepared Case Outline Document filed 13 April 2023.
BACKGROUND
The mother was born in 1985, and is presently 38 years of age.
The father was born in 1985, and is presently 37 years of age.
The parties commenced their relationship in 2012 and married in 2014. The child was born in 2016. The parties separated in 2018 or 2019.
On 3 March 2019, the father commenced proceedings. On 5 December 2019 supervised time orders were made by Foster J, each alternate Sunday by E Contact Service. The mother says that the father only attended a number of these available sessions. In early 2021, E Contact Service terminated their services. As I say, a single expert report was completed in May 2021.
The father's previous Case Outline Document, filed 13 April 2023 contended that, on 4 October 2022, orders were made discharging the interim parenting orders that were made on 5 December 2019 in respect of the father's time with the child; and that there are currently no orders in place for the father to spend time with the child.
During this time, the father further contends that he has made significant changes and has completed most of the single expert report recommendations. That is something that will be explored at the final hearing.
The mother has given evidence in her earlier affidavit also setting out that the child has not spent any time with her father since May 2021. That fact is not in dispute.
On 11 May 2022, orders were made by consent that the child was to live with mother on a final basis.
THE LAW
The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode (2006) FLC 93-286.
In applying the law to the facts, the court must uphold the relevant objects and principles, as set out in Part VII of the Act, that guide the making of orders in respect of children. Pursuant to s 65D of the Act, the court has the power to make such parenting orders it deems proper. In doing so, the paramount consideration is the best interests of the child.
The objects of the Act in relation to parenting orders, as set out in s 60B of the Act, are to ensure that:
(a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
(b)Children are protected from physical or psychological harm, from being subjected to, or exposed to abuse, neglect or family violence;
(c)Children receive adequate and proper parenting to help them achieve their full potential; and
(d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
When considering what interim orders should be made, the court identifies the competing proposals and issues in dispute on the basis of the agreed or uncontested facts. However, the court in some circumstances must have some regard to the matters in dispute.
In Deiter v Deiter [2011] FamCAFC 82, the Full Court determined that when making an interim order, a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by a child.
The court must make orders as are in the best interests of the child as a result of a consideration of the matters set out in s 60CC of the Act.
The primary considerations, which are contained in s 60CC(2) of the Act, are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2A) of the Act provides that in applying these considerations, I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents.
Further, in determining what is in the child's best interest, the Court must consider additional considerations set out at s 60CC(3) of the Act.
In this case, primarily, my considerations turn on the additional considerations as set out.
Those relevant s 60CC of the Act matters have been considered by me and are included below.
CONSIDERATION
At the hearing the mother proposed that she be permitted to take the child to travel to the USA for 8 days (inclusive of travel time to and from Australia). Upon arrival in the USA, she identified that the child, her parents and herself will go to a theme park and travel home via State D, where they propose to stay for several days.
The details of the proposed travel are set out in the mother's affidavit at paragraphs 10 - 12.
The mother refers in her affidavit to "my travel to Europe". There is no intention of the mother to travel to Europe, but I note that in the previous application there was an intention to travel to Europe and I give no regard to that issue of the reference to Europe. It is obviously a typographical error.
Her intention in relation to her travel with her parents is set out clearly in paragraphs 10 - 12.
The mother contends the following matters:
(a)The mother asserts that she has significant ties to Australia. She is an Australian citizen engaged in full time public service employment, as set out between paragraph 71 - 76 of her affidavit dated 1 December 2022.
(b)The mother asserts that the child is currently enrolled at, and attending, F School and that the mother has invested $25,000 for the child's tuition for 2023. The mother states that there is an order in relation to the child being put on the waitlist for G School in Sydney, as set out between paragraph 71 - 76 of her affidavit dated 1 December 2022.
(c)The mother deposes that she owns property in Sydney, and has family and friends that live in Australia, as set out in paragraph 73 of her affidavit dated 1 December 2022
(d)The mother deposes that she has made plans to travel overseas with the child and her parents in August 2023 - a period of 8 days. The mother proposes that the child visit a theme park in State C in the USA for the first four days, and thereafter to City H, Region J, State D for the remaining days, before returning to Sydney Australia. The evidence of the itinerary was attached on her affidavit filed 31 May 2023.
(e)The mother has provided a detailed travel itinerary to the father, including travel locations, dates, persons accompanying the child on the travel and missed schooling arrangement set out in the itinerary that is attached to her affidavit.
(f)The mother states that in her view it is in the best interests of the child to have the opportunity to travel and to explore new places, as well as connect with her grandparents while experiencing the holiday.
(g)The mother states that, for the child to be permitted to travel, she requires a valid passport, and thus it is sought that the mother be permitted to be the sole signatory on any passport related documents to ensure that the child can obtain a new passport in time. I note that both the father and the mother refer to the fact of the passport expiring and I note that children's passports issue for a 5 year period. The father refers to his belief that the passport is about to expire at paragraph 3 of his affidavit.
The father filed a Response to Application to Proceeding and affidavit in support of his opposition to the orders on 8 June 2023.
He contended that he had raised concerns about the child travelling to Country K and not returning. I note that this application however is for the child to travel to the USA. It appears that his belief is that either the mother and her family will not travel to the USA, and travel to Country K and remain there, or travel to the USA and not return, and then travel to Country K. He gives evidence of his belief that the mother and her family have significant means and will remove the child and not return her.
At paragraph 10 of his affidavit, he outlines his numerous concerns that:
10.1.[Ms Jorie] adopted a similar approach when seeking permission to travel during the covid lockdowns 2020-2021. With each court appearance her itinerary continued to change and this is documented in her affidavit for those appearances.
10.2. Each time it started with a one week trip to the United States to [go to a theme park], to then be 4 weeks in [Country K].
10.3. Due to this pattern, I believe [Ms Jorie] will change the itinerary if she receives approval for [X] to leave the country, and will not provide the court with these changes.
10.4. In the travel itinerary it states that 2 queen beds are booked for [City L] and [State D]. If [X] is to travel overseas, I request [X] to have her own bed and not share with an adult. As it is expected of me to provide a whole room for [X] if she were to stay under my care.
The father states that he has concern about the child missing crucial learning at school, taking a holiday mid-term. The father also makes reference to members of the mother's family having passports and access to various countries.
When asked in submissions, the father was unable to articulate the basis for his concern, other than to say historically he has raised a concern that the mother has threatened to remove the child.
The father also seeks that if the mother's application to travel is successful, she pays a $200,000 bond, and he be provided with specific information as set out at paragraph 19 of his affidavit:
19.1.A copy of the boarding passes for [X] and all those travelling with [X] for the trip.
19.2. One photo of [X] each day where she is looking at the camera. Therefore 7 days according to [Ms Jorie’s] current itinerary (4 photos in [City L], 3 photos in [State D]).
19.3. The photos of [X] are to be of [X] by herself enjoying her surroundings/location.
19.4. Appropriate scenery photos […]. Photos worthy of social media, or that show a memory. I ask this as I have not had an updated photo of [X] since May 2021.
19.5. The camera taking the photo of [X] has its location service turned on for the camera so the photos metadata will show the location and time of the photo. To correlate with the dates and locations on the itinerary.
19.6. After the trip, [X] is put back on the Airport Watchlist as a flight risk.
19.7. Any further or future requests for [X] to travel overseas requested to be approved by the court.
19.8.All above documents and photos be forwarded to the email address […@...].
I summarised the concerns raised by the father and gave him an opportunity to elaborate or to let me know if I had missed any concerns. He agreed with the concerns I had summarised, being:
(a)That the mother will either not go to the USA or will go to USA and then go to Country K or other international locations;
(b)That the mother or the mother's family will remove and not return the child from Australia; and
(c)The child missing out on crucial schooling.
I also noted the orders that I have referred to above the father seeks in relation to a bond, and certain photographs and information.
The mother gives evidence that she intends to ensure that the child does not miss school. At paragraph 13 of her affidavit, she states:
13.[X] will miss one week of school and permission will be sought from the school to do so. In order to ensure she will not fall behind, [X’s] teacher will provide any additional work to ensure that [X] can continue her school work while on our travels. [X] also has a multitude of online learning programs provided by her school such as [math and reading platforms]. During this week I will ensure she does her reading and online learnings as she does currently. I will ensure any extra work provided by her teacher is completed.
This application is for a child who is 6 years of age to miss one week of school. The mother's evidence is, and I accept her evidence, that she will make an effort to ensure that online learning will occur. I do not accept that a week out of school for a six year old in such circumstances is a reason to refuse the application. School is obviously important, but so is the opportunity to travel with family and have the experiences that come with travel, such as broadening the mind and experiencing different cultures. In particular, the experience for a six year old girl to travel to a theme park is important.
The application is to travel for eight days, to State C and then State D, as set out in the mother's affidavit.
The USA is a Hague country. The father understands the Hague Convention on the Civil Aspects of International Child Abduction ("the Convention") and he confirms that in his submissions today. The Hague Convention on the Civil Aspects of International Child Abduction is an international agreement that covers international parental child abduction. The Convention is a multilateral treaty enforced between Australia and a number of other countries, including the USA. It provides a lawful procedure for seeking the return of abducted children to their home country.
The USA and, incidentally, also Country K have both signed the Convention and Australia has recognised that.
I accept the mother's evidence about the location and intention of the trip. For her not to return with the child, would result in a Hague application with the result of costs and consequences at the final hearing of this matter.
There is evidence of the mother's employment, of her ties to Australia, her friends and her intention to return. The father could point me to no proper reason to doubt her evidence. There is evidence that the mother has travelled in the past. There is no evidence of the mother's family intending to remove the child, or any threats to do the same.
The maternal grandparents also live in Australia.
The father seeks some photos of the child. This seems reasonable in the circumstances. I have read the single expert report and I note that she recommended supervised time. The mother has given some evidence in relation to what occurred as a result of this and what is not in dispute from either party, is that the father has had no time at all since May 2021.
For the father to resist this holiday opportunity of 8 days in these circumstances where he has not availed himself of the opportunity to spend time with the child in over two years, is a difficult position for me to understand. There will no doubt be further exploration of this at the final hearing listed early next year.
The untested evidence as contained in the single expert report is that the child has a close and loving relationship with the mother, and indeed with the maternal grandparents. I accept that the single expert report is untested, however, I give it some weight. I give particular weight to paragraphs 107, 108 and 111. In paragraph 111 in particular, the single expert states:
111.The observation indicated that [X] has a close and affectionate relationship with her grandparents and mother, though she used her mother as a source of reassurance and security. [X] exhibited attachment behaviour with her mother, reflective of [Ms Jorie’s] role as primary carer and primary attachment figure. The play and interactions appeared natural. [X’s] capacity to play, explore and chat reflected that she was comfortable and relaxed in the care of her mother and maternal family.
The father alleges that the maternal grandparents are controlling, and this may be tested at the final hearing if it becomes a relevant matter.
However, I accept that it is in the child's best interests to have the opportunity to travel on a holiday with her mother and her maternal grandparents as proposed by the mother.
In reaching this decision in relation to what orders are in the child's best interests, as I say, I have had to balance the relevant matters in s 60CC of the Act. This is a very limited issue to be considered today. It is a period of eight consecutive days with the mother and the maternal grandparents. It would be exciting for the child. I accept and I find that it is in the child's best interests that she be permitted to engage in the experience of overseas travel. I accept that the mother wishes the child to have such experiences with the maternal family. However, this experience does not outweigh the child's other needs and interests.
An engagement with the mother and the maternal grandparents and the US culture is an experience sought by the mother for the child to enjoy. I agree that it should be an experience she should enjoy and it is in accordance with her best interests that she experience this holiday time as proposed.
The mother has sole parental responsibility and has had sole care of the child for at least the last two years. The father has not been exercising the supervised time, and as I say, the question of the time the father will spend with the child is something for determination at the final hearing.
I find that the eight days, including travel, is appropriate and the mother will manage any school catch up. I accept her evidence in relation to that. I note that the mother holds that responsibility in any event with the sole parental responsibility that she currently holds.
In regards to obtaining a passport, the mother will be responsible for obtaining a passport for the child at her expense. The passport can, until further order, remain in the possession of the mother.
For travel, the father seeks, and I will order, that upon the mother's return, the Watchlist order be reinstated. I do not consider that the mother is a risk of not returning for the reasons above, including her employment, her ties to Australia, her friends and her property.
I do not propose to make an order for the payment of the bond as sought by the father. I do not consider it to be necessary.
I note again that the child is travelling to the USA which is a Hague country.
I expect that the mother and the maternal grandparents will comply with the orders that I am making for the child to return as proposed.
I also note the history as set out by the legal representative for the mother, that is, the agitation that the mother's desire to travel has been longstanding. I note that this application is supported by the Independent Children's Lawyer and I note the contents of the Independent Children's Lawyers Case Outline. I note the father makes a broad allegation that the mother is not trustworthy but there is no reason for me to find that the mother is not going to comply with orders of this court.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Curran. Associate:
Dated: 16 October 2023
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