Kael and Cabello

[2017] FamCA 449

FAMILY COURT OF AUSTRALIA

KAEL & CABELLO [2017] FamCA 449

FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Where the mother seeks that the child be permitted to travel overseas for various periods from June 2017 to December 2017 – Where the mother seeks that she be permitted to remove the child from Australia at her discretion when the child is in her care – Where the father opposes the mother’s application – Court finds that bi-monthly trips to New Zealand would achieve a balance which would meet the interests of the child – Orders made for the child to travel to New Zealand in July, September and November 2017– Orders made for the parties to do all things to cause a passport application for the child to be lodged with the Australian Passport Office.

Family Law Act 1975 (Cth)
APPLICANT:	Ms Kael

RESPONDENT: Ms Cabello

FILE NUMBER: SYC 7954 of 2016

DATE DELIVERED: 28 June 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 21 June 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Spain

SOLICITOR FOR THE APPLICANT: Barkus Doolan Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Sproston

SOLICITOR FOR THE RESPONDENT: Croker Edwards

Orders

1. The mother is permitted to remove the child B born on … 2012 ("the child") from the Commonwealth of Australia for the purpose of travel to New Zealand on the following dates:

   (a)       11 July 2017 until 19 July 2017

   (b)       7 September 2017 until 11 September 2017

   (c)       16 November 2017 until 20 November 2017.

2. Both parties will do all things necessary to cause a passport application to be lodged for the child with the Australian Passport Office.

3. Otherwise, the mother's Application in a Case filed on 1 June 2017 and the father's Response to an Application in a Case dated 19 June 2017 are 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 Kael & Cabello 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 SYDNEY

FILE NUMBER: SYC 7954  of 2016

Ms Kael

Applicant

And

Ms Cabello

Respondent

REASONS FOR JUDGMENT

The proceedings

1. Ms Kael and Mr Cabello are the parents of a child, B, who was born in 2012 ("the child") and is currently five years of age.  By an Application in a Case filed on 1 June 2017 the mother sought the following orders:

   2.That the mother be permitted to remove the child from the Commonwealth of Australia for the purpose of overseas travel on the following dates:

   2.1      16 June until 18 June 2017;

   2.2      11 July until 19 July 2017;

   2.3      11 August until 17 August 2017;

   2.4      7 September until 11 September 2017;

   2.5      19 October until 23 October 2017;

   2.6      16 November until 20 November 2017; and

   2.7      15 December until 24 December 2017.

   3.That the mother be permitted to take the child outside of the Commonwealth of Australia for a holiday and the father shall not unreasonably withhold his consent in relation to such travel:

   3.1So far as practicable the occasions on which the child is to travel outside of the Commonwealth of Australia is to coincide when the child is due to be in the mother's care;

   3.2The mother will give the father as much notification as possible of an intention to travel with the child and in any event, not less than 28 days notice;

   3.3Not less than 14 days prior to the departure date, the mother will provide to the father a detailed and accurate itinerary which is to include:

   3.3.1Departure date;

   3.3.2Return date;

   3.3.3The country which the child will be travelling to, including any stopovers;

   3.3.4The date the child will arrive in, and depart from, each country (including any stopovers);

   3.3.5Telephone number and address at which the child can be contacted;

   3.4Whilst the child is travelling outside of the Commonwealth of Australia, the mother will ensure the child is available for reasonable telephone contact with the father.

   4.That within 48 hours of the date of the making of these Orders, the parties do all acts and things and sign all documents necessary to cause a passport application to be lodged for the child, with the Australian Passport Office ("[B's] passport application") pursuant to Section 11 of the Australian Passports Act 2005.

   5.That the mother meet the cost of [the child's] passport application.

   6.The respondent father pay the mother's costs of and incidental to these proceedings."

2. By a Response to an Application in a Case dated 19 June 2017 the father sought the following orders:

   1.That the Mother be permitted to remove the child [B] born … 2012 from the Commonwealth of Australia for the purpose of the following travel:

   1.1Visiting [City C], New Zealand, from 11 August 2017 to 17 August 2017; and

   1.2Visiting [City C], New Zealand, from 15 December 2017 to 24 December 2017.

   2.That the Mother pay the Father's costs of and incidental to these proceedings."

3. The mother deposed the purpose of the travel identified in paragraph 2 of her Application in a Case was for her and the child to spend time in New Zealand with her partner, Mr D, and his two children.  In her affidavit sworn on 1 June 2017 the mother deposed that she wished to travel to Asia with the child for the period 11 to 19 July 2017.  Apparently the mother abandoned this proposal prior to the interim hearing on 21 June 2017.

Background

1. The mother is aged 37 and the father is aged 36. The parties began to live together in the South America in approximately 2003.  They married in 2005 and separated finally in September 2015.

2. The mother has a child, E, who was born in 1997, and lives in the United Kingdom.  He came to Australia in 2013 but elected to return to live in the United Kingdom with his family and friends.

3. These proceedings were commenced by the mother's Initiating Application filed on 1 December 2016, by which she sought inter alia orders which would permit to relocate the residence of the child to City C.  She sought no interim orders at all in this application.

4. On 6 January 2017 the father filed an Application in a Case, in which he sought inter alia an order to restrain each party from removing the child from the Commonwealth of Australia.  In her Response to an Application in a Case filed on 23 March 2017 the mother sought no orders in relation to overseas travel with the child.  The name of the child was placed on the airport watchlist early in 2017.

5. On 28 March 2017 the parties consented to the following interim orders:

   1.That by consent and pending further order, orders are made in terms of the partly handwritten and partly typed amended document headed ‘By Consent it is ordered, pending further order’ signed by all parties and marked Exhibit 1, set out herein:

   1.That [the child] live with the mother except as otherwise provided for in these orders.

   2.That the mother and father have equal shared parental responsibility for making decisions about the long-term issues in relation to [the child].

   3.That the child spend time with the father as follows:

   3.1Each alternate Tuesday from the conclusion of day care or 3.30pm until 6.30pm commencing 11 April 2017.

3.2From the conclusion of daycare on Friday or 3.30pm until the commencement of daycare the following Monday or 9.00am and each alternate weekend thereafter commencing on 31 march 2017.

3.3At such other times as agreed between the parties in writing.

4.That for the purpose of implementation of Order 3.1 herein, the child shall be exchanged between the parties at [F Street, Suburb G] in the state of New South Wales or such other mutual location as may be agreed between the parties in writing.

a)That for the purpose of implementation of Order 3.2, the father shall collect the child from and return the child to daycare.

5.That the mother shall authorise the principal and staff of [the child’s] preschool/daycare centre or school to supply the father with copies of all reports, photographs, counsellor’s notes, memos, newsletters, invitations, notices and any other information in relation to [the child] that the father may request from preschool/daycare or school from time to time.

6.That each party notify the other immediately of any serious injury or illness suffered by [the child] whilst with that party.

7.That each party may notify the other not more than 24 hours after they have changed their residential address and/or landline or mobile telephone number.

8.Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

NOTATIONS:

A:The matter is set out under the heading ‘Notations’.

B:The father shall use his best endeavours to ensure the child attends [H Day Care] on days he is registered to attend and in the father’s care. Subject to how [the child] is coping with the travel from [Suburb I] to [Suburb J] boting (sic) the father deposes a round trip can take him 2.5 hours

C:It is agreed between the parties the father shall spend time with [the child] on 30 March 2017 until 3 April 2017; from 13 April 2017 to 17 April 2017 and 8 May 2017 to 12 May 2017, whilst the mother is away for work purposes.

D:The father reserves his right to press the Interim Orders sought in his Application in a Case filed 6 January 2017 on the first available date after the release of the Child Responsive Program Memorandum or any Part 15 Expert Report."

1. The mother first raised the issue of the child travelling internationally with her by a solicitor's letter dated 18 April 2017.  She sought the father's consent to five overseas trips between April and August 2017, four of which were to New Zealand and one to Asia.  This proposal would have meant that the child returned from New Zealand on 28 May 2017 and left Australia again on 9 June 2017.  By letter dated 2 June 2017 the father's solicitor conveyed to the mother's lawyer his consent to the proposed trip to Asia.

2. The travel to New Zealand which the mother proposes would take place at times when the child is in her care pursuant to the interim orders of 28 March 2017.  These trips would take place on a monthly basis.  The mother also sought orders which would permit her to take the child out of Australia at her discretion, with no restrictions in relation to destinations and on dates which coincide only "so far as is practicable" with periods when he is in her care pursuant to the Orders of 28 March 2017.

Consideration

1. The best interests of the child is the test to be applied in the determination of the mother's Application in a Case filed on 1 June 2017 and the father's Response of 19 June 2017.

2. The father set out the reasons for his objection to the proposed trips to New Zealand as follows in his affidavit sworn on 19 June 2017:

   51.My concerns about the child travelling internationally with [Ms Kael] have been and are:-

   51.1[Ms Kael's] wish and ability to move [the child] to New Zealand and her actions excluding me from the decision-making process in relation to the child.

   51.2[The child] is not used to international travel being a regular part of his life.

   51.3[Ms Kael's] proposals for international travel with [the child] appear exhausting for him.  I refer, in particular, to the letter from [Ms Kael's] solicitors to my solicitor dated 18 April 2017.

   51.4I estimate that travelling from [Ms Kael’s] home in Suburb J to [Mr D's] home in [City C] takes approximately 8 hours.  [Ms Kael’s] home is 33 kilometres from Sydney airport.  [Mr D’s] home, using the address in [Ms Kael’s] affidavit, is 37 kilometres from [City C] airport.  Annexed hereto and marked with the letter "L" is a copy of two screen shots from an internet search I caused to be conducted on 18 June 2017.  I do not agree to [the child] travelling to [City C] for less than the seven day period proposed by [Ms Kael] for August 2017, and I do not agree to him doing this return journey every month or every fortnight, as [Ms Kael] has proposed.

   51.5I note that [Ms Kael’s] application is to permit [the child] to travel with her whenever she wishes and to wherever she wishes, and that [Ms Kael] travels for work frequently.  I do not agree to [the child] accompanying [Ms Kael] on work trips, unless there is a special reason for him to do so.  I do not know why [Ms Kael] now wishes [the child] to accompany her on work trips, given that he has not done so previously, including before we were separated.  I cannot see the benefit to [the child] of being looked after by a stranger in a foreign country while [Ms Kael] attends to work.

   51.6I am concerned that [Ms Kael] will use the opportunity of taking [the child] to New Zealand to advise him that that is where he is going to live, especially in circumstances where she has indicted (sic) in her affidavit that she has already set up a bedroom for the child in [Mr D's] home, notwithstanding that the child has never been to New Zealand previously.  If [Ms Kael] is permitted to move the child to New Zealand, then the child will need to be prepared for the change, but advising him now that he is moving there will confuse and upset him.

   On 6 November 2016, [the child] said to me words to the effect:  "I'm going to [City C].  [City C] is cool.  I'm moving to [City C].  Are you coming?  I want you to come too Papa."  On 3 June 2017, [the child] said to me words to the effect:  "I going to move to New Zealand.  [D] has a house in New Zealand."  "D" is the child's name for [Mr D].

   51.7Since September 2016, [Ms Kael] has been making comments to me that have given me the impression that she is taking actions purely to bolster her case in these proceedings, rather than because they are good for [the child].  For example, she has made the following statements to me in text messages:

   51.7.1On 9 September 2016:  "This looks really bad for you" and "I have all the records…"

   51.7.2On 19 October 2016:  "I was waiting for that it shows that you do not have [the child] best interests at heart but your own."

   51.7.3On 6 November 2016:  "Its cool lawyer is just asking me to show I'm trying".

   51.8There have been a lot of changes in [the child's] life over the past two years including five different residences, two different daycare centres, and incredibly fluid care arrangements, and I believe that his routine needs to calm down and have some stability.  [Ms Kael] has expressed to me that she notices signs of anxiety in [the child]."

3. The father deposed that, since the parties' separation, the mother has moved the child's residence and changed his daycare centre without any consultation with him.  He deposed also that the mother increased the child's days of attendance at childcare, without any input from him, on two occasions.  The father alleged that the mother unilaterally determined the time which the child spent with him, prior to the Orders of 28 March 2017.  These considerations suggest that there may be some substance to the father's concern as to the mother's intentions in relation to his on-going role in the child's life.

4. It could well be that the mother wishes to travel to City C with the child on a regular basis in order to bolster her relocation application.  Of itself, such a scheme would not be fatal to the mother's application.  The issue is the likely impact on the child and whether the proposed trips would be in his best interests.

5. I accept the evidence of the father, to the effect that the impact on the child of the actual travel process would go beyond the three-hour duration of flights between Sydney and City C.  The mother and the child live at Suburb J, which is some distance from Sydney Airport.  They would be required to check-in at least two hours before each flight.  I do not consider that this experience, on a monthly basis, would be of benefit to the child.

6. I accept that there is substance to the father's concern that the proposed travel would be likely to be disruptive to the child, who has experienced a number of changes in his circumstances since the separation of his parents.  City C is not a familiar location to the child and, in May 2017, he told the Family Consultant that he did not know Mr D.

7. A refusal of the mother's application would not prevent her from pursuing her relationship with Mr D. Of course, she is at liberty to travel to New Zealand whenever she chooses during periods when the child is in the care of the father.  Nothing in the evidence suggested that Mr D is unable to travel to Australia.  The mother told the Family Consultant in May 2017 that she began a relationship with him in February 2016, when he lived and worked in Australia, and that he returned to New Zealand in January 2017.

8. On the other hand, Mr D is the partner of the mother and she proposes to share her future life with him.  Obviously, the long-term success of any relationship cannot be predicted with certainty but the mother's plans certainly envisage a life with Mr D at this stage.  It seems to me that the child would benefit from a carefully managed introduction of Mr D into his life, given his significance to the mother.

9. In my view, it is a question of balancing the likely impact of frequent travel to New Zealand upon the child with the desirability of his becoming accustomed to an important figure in the life of his mother.  I consider that the father's proposal is insufficient to achieve that purpose but, also, that the mother's suggestion of monthly trips is at the other end of the spectrum of reasonable arrangements.  I conclude that bi-monthly trips to New Zealand would achieve a balance which would meet the interests of the child.

10. The mother specified dates for proposed trips in her Application in a Case, which concluded in December 2017.  The mother did not particularise the destination in her Application but I will make orders which limit the child's travel to New Zealand.

11. I will not accede to the mother's application for an order which would give her effectively an unrestricted right to travel overseas with the child and, potentially, to impinge upon his time with the father.  I am of the view that the father should have the opportunity to consider each proposed trip on its individual merits, from the perspective of the best interests of the child

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 28 June 2017.

Associate: 

Date: 28 June 2017