KARRAS & MASTERSON

[2017] FCCA 3295

FEDERAL CIRCUIT COURT OF AUSTRALIA

KARRAS & MASTERSON [2017] FCCA 3295

Catchwords:
FAMILY LAW – Travel application – overseas application.

Legislation:

Family Law Act 1975, pt.7

Cases cited:

Line & Line (1996) 21 FAM LR 259

Kuebler & Kuebler (1978) FLC 90-434

Applicant: MR KARRAS

Respondent: MS MASTERSON

File Number: MLC 123 of 2012

Judgment of: Judge Harland

Hearing dates: 10 & 31 October 2017

Date of Last Submission: 31 October 2017

Delivered at: Melbourne

Delivered on: 31 October 2017

REPRESENTATION

Counsel for the Applicant: Mr Korke

Solicitors for the Applicant: Moss Legal

Counsel for the Respondent: Ms Metherell

Solicitors for the Respondent: Tisher Liner FC Law

ORDERS

1. The children X born (omitted) 2008 and Y born (omitted) 2010 (“the children”) be permitted to travel outside of the Commonwealth of Australia to (country omitted) with their father departing the Commonwealth of Australia on (omitted) and returning on (omitted) for a holiday and to celebrate their father’s 50^th birthday with family and friends.

2. Order 1 herein is subject to the father taking Y born (omitted) 2010 (“Y”) to Dr G at least three weeks before (omitted) 2017 for a travel consult and to seek specific advice about managing Y should she have issues with the humidity in (country omitted), with the father to inform the mother of the outcome of this consult within 24 hours of it occurring.

3. The father provide the passport applications of the children to the mother on or before 7 November 2017 and the mother sign the passport applications and return them to the father on or before 14 November 2017.

4. If the mother does not sign and return the passport applications to the father by 14 November 2017, the father is permitted to obtain the child’s passport pursuant to section 11 of the Australian Passports Act2005 without the mother’s consent.

5. For the duration of the children’s stay in (country omitted) pursuant to Order 1 herein the father is prohibited from attending with the children, or any one of them, at or near any place listed on the DFAT smart traveller website ( as “Reconsider your need to travel” and “Do not travel” or permit any other person to do so.

6. The father facilitate the children communicating with the mother at the following times by Skype or Facetime, and failing Skype or Facetime, as follows:

   (a)Upon the children first arriving at their accommodation; and

   (b)On Y’s birthday at 4.00pm (country omitted) time.

   with the father to initiate the call.

7. The father and his partner afford the children privacy during communication with the mother.

8. From today and until the conclusion of the holiday, the father and his agents be restrained from communicating with the mother about these proceedings or any matter that does not pertain directly to the health care or wellbeing of the children.

9. The father obtain top cover travel insurance (including for Y’s pre-existing medical conditions) for the trip for both children and provide the mother’s solicitor with confirmation of policy details within seven days.

10. Upon returning to the Commonwealth of Australia, the father is to provide Y’s passport to the mother within seven days of return and the mother is to hold that passport, with the father to retain and hold X’s passport.

NOTING

1. Pursuant to ss.65DA(2) and 62B 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 Attachment A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 123 of 2012

MR KARRAS

Applicant

And

MS MASTERSON

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. At first blush, one could be forgiven for wondering why this matter is in court at all as it is an application by the father to travel with children, X born (omitted) 2008 (“X”), who is aged nine, and Y born (omitted) 2010 (“Y”), aged seven (collectively “the children”), to (country omitted) for a two-week family holiday.  However, having heard submissions on two occasions and having read the material, I now wonder how the parties agreed to consent orders in 2012 to their parenting matters at all.

3. It is also somewhat surprising that they have not wound up in court before now, given the level of acrimony, distrust and conflict between the parties. Both parties are responsible for that, and both parties really need to turn their minds to it and do something about it for the benefit of their children. I think the parties would benefit from using an application such as MyMob or Our Family Wizard to communicate because, clearly, the way they communicate now – or do not communicate – is not working.

4. The father’s case is that the purpose of his proposed trip is to celebrate his 50^th birthday, which he says is an important occasion for him and he does not want his children to miss out.  He is also travelling with his partner and her three children, and his brother and his wife are also travelling on the trip with their one-year-old son.  He says that initially he was proposing that the trip take place in the (country omitted) but, after the mother objected to the (country omitted), as it is not a signatory to the Hague Convention Against Civil Aspects of Child Abduction, he changed the trip to (country omitted).  He says that he has no intention of staying in (country omitted) for longer than the trip.  Whilst he does not own any real estate in Australia, he has a business and owns a truck.  His mother and brother live in Victoria and his partner has a (omitted) business.

5. The mother opposes the father’s application.  It is clear from the affidavit material that both parties make numerous complaints about the other and that, in some instances, those complaints are not relevant to the application for travel but are indicative of the level of distrust and lack of communication and confidence in each other that is apparent and which must be obvious to these two children.

6. The mother’s primary concern is based on Y’s health and a fear that the father will not return with the children. She fears it will be easy for him to keep the children with him as his brother’s wife is from the (country omitted) and has connections, therefore, in (country omitted).  There is no doubt that Y has had several health issues in her young life and has spent a lot of time at hospitals and with doctors.  She was born prematurely and with a cleft palate and also has some hearing loss and grommets in her ears.  There is a real dispute and much of the controversy focuses on the extent of Y’s medical issues and the father’s awareness and insight into those issues and ability to address them.

7. The level of distrust and suspicion that the parties have towards each other would only have been heightened by the father taking unilateral action to apply for a passport without the mother’s consent.  As is the usual practice of the Australian Passports Office, they contacted the mother to seek her views on it.  That would have heightened her concern that the father would take the children overseas whether she consented or not.  It certainly has not helped his position before the Court.

8. The father filed his application after the Passport Office refused to issue the passports on 25 August 2017.  The mother’s lawyers filed a notice of address for service on 19 September 2017 but did not file the documents in response until 5 October 2017.  That gave the father two full working days before the matter was in Court to be on notice of the basis of her objections.

9. I heard submissions on 10 October 2017 addressing many of the issues and indicated that what was of some concern was the medical issues for Y and that that was the issue that was of most concern and most unclear to me on the state of the evidence before me at that stage.  The father had attended the parties’ medical practice and Exhibit A is a letter from one of the GPs at the practice, certifying that X is medically fit and healthy and that there is no reason for her not to fly.  The issue was, with respect, to Y, but clearly it was an attempt to address the issue that the mother raised in her material.

10. Due to the short notice that the father had about those issues, I adjourned the matter to today to enable the father to obtain medical records and to file an affidavit responding to the issues that the mother raised.  I directed that he file and serve that affidavit by 26 October 2017.  He did not file the affidavit until late yesterday and it was not served until the matter was called into Court this morning.

11. It is entirely unacceptable for parties to continue to ignore Court orders and yet expect the Court to accommodate their requests.  It is a Court of law.  Procedural fairness is something that the Court has to accord both parties and is criticised for if it does not, yet it is placed in a position all too often in parenting and other matters with late material and with submissions being made that “yes, it’s late, mea culpa, but it has evidence that’s helpful to the Court”.

12. Eventually, I allowed the affidavit in as the mother’s solicitor made submissions that went to that affidavit.  What is also clear from the affidavit is that it reads as if the father himself prepared it and not his solicitor, although it has his solicitor’s details on it.  Much of the affidavit goes to issues that go well beyond the scope of the application before me today and, in part, that is because of issues that the mother has raised.

13. The other material that forms exhibits before me today is a further medical certificate, which is exhibit B, for Y, dated 27 October 2017, which states that, provided that Y attends for a travel consult and has appropriate travel immunisations, she should be fit to fly.  The mother’s solicitor points out that this certificate refers to the father and children flying to (country omitted) for a family holiday and does not refer to court orders and points to this as an example of the father’s attitude to court orders.

14. The difficulty with that submissions is that this is a two-line letter from a GP that has typing errors in it, as did the previous ones, and is probably from a harried practitioner who is sick of the parties coming in with family law disputes, with competing versions and talking about it.  It is not a matter for the doctor to refer to or even know about the fact that there are proceedings on foot.  The issue for the doctor is whether or not there is any medical reason not to fly.

15. Now, of course, it is a very brief certificate.  It does not provide much context but it is from the medical practice where the children attend regularly and is one of the doctors who sees the children regularly.  That is apparent from Exhibit C, which is an extract of subpoenaed material from that medical practice and it is clear from this exhibit that this GP in particular has received calls and attendances from the parties before that go to parenting issues, for example.

16. The doctor records on 20 July 2013 that they received a telephone call from the father to confirm that one of the girls really was sick as the mother had cancelled the weekend visit.  Then the mother called the doctor, complaining that the father had said that the doctor had given permission for the father to pick up the girls.  She then had to call the mother the next day and indicated that she had not done that.  There are other references to court proceedings in 2012 and the father making a call in 2013 asking for details about Y’s speech therapy.

17. What is also apparent from the records is that Y has had recurrent upper respiratory symptoms of a couple of days duration and there is an indefinite referral from the clinic to the (omitted) Hospital dated 5 October 2016.  The mother places emphasis on this referral, arguing that it indicates ongoing serious medical issues for Y, given it is an indefinite referral which suggests that she needs ongoing attendances at (omitted) Hospital, as making an indefinite referral avoids the need for a patient to seek further updated referrals from a general practitioner. 

18. It is certainly clear that Y has medical issues that require ongoing management and review, and the letter refers to her medical history, particularly the cleft palate, and refers to some other issues, but does not refer to any issue of asthma or breathing difficulties, and notes that there are no regular medications for her.  The issue is whether or not her medical issues are such that it would be unsafe for her to travel.

19. The mother also relies on Exhibit D, which is a letter with enclosures that her lawyers sent to the father’s lawyer.  The medical certificate attached, dated 11 October 2017, states that Y has sensitive bronchioles, where she can get asthma-like symptoms, particularly when she gets viral upper or lower respiratory infections and also with the change of weather and humidity.  It was written by the same doctor who has written the certificate that is annexed at the letter B.  There is also an annexure showing regular attendances on a doctor, particularly in 2013, 2014, 2015 and becoming less regular in 2016 and 2017.  The mother submits that this is because she understands how to manage Y’s symptoms at home, without the need to attend the GP regularly. She refers to what she has been told to do in paragraph 5 of her affidavit.

20. The last annexure to that correspondence is a letter from Y’s paediatrician, to the GP, dated 22 January 2016, which refers to Y’s medical problems as being born at 33 weeks’ gestation with a cleft palate, recurrent otitis media, which is ear problems, eczema, asthma, eczema and a cat allergy. The paediatrician recorded that, in the past 12 months, she had had a number of respiratory infections, recurring coughs and probable asthma.  

21. She had had a sleep study, which showed normal recordings and no obstructive sleep apnoea, and she had had a referral to audiology for ear problems.  The paediatrician found her chest clear and her tonsils not enlarged or inflamed, and indicated that the history was consistent with episodic asthma, and recommended that if there were prolonged episodes in the future that the treatment would involve an inhaled bronco-dilator and oral steroids, and if there are symptoms over the coming winter, she could be given a trial of Flixotide inhaled steroids.

22. Exhibit E was tendered by the father’s counsel, which is an extract from the school records, which refers to Y’s medical details.  The form is dated 31 July 2015, and it was signed by the mother, with an update signed 16 May 2016, where she indicated that Y suffers from recurrent coughs and wheezes.  She is not on medication.  There is no asthma plan.  She does have hearing and speech impairments.  In essence, the mother says that because of Y’s medical conditions and young age, it would not be safe for her to travel overseas.  She does not object to the father taking the children on holidays within Australia.

23. When considering an application by a parent, to take children on overseas travel, the Court must be satisfied that the proposal is in the children’s best interests and consider the usual factors set out in Part VII of the Family Law Act 1975 (Cth).

24. There are two cases in particular which provide useful guidance to the issues that can be relevant to these applications, being Line & Line (1996) 21 FAM LR259, and Kuebler & Kuebler (1978) FLC 90-434. Those considerations include:

    i)The length of proposed stay out of jurisdiction.  The father’s proposal is that the children travel for two weeks, to (country omitted), during the school summer holidays.  They will not be missing any school time.

    ii)The bona fides of the applicant.  I am satisfied that the father is genuine in seeking to have the children travel with him overseas.  He wishes to have them involved in a family celebration of his 50^th birthday.  There is nothing out of the ordinary about that, and he says he does not want his children to miss out on that celebration, which is important to him.

    iii)The effect on the children of not seeing the other parent.  In this case, it is a two-week trip, and the father says he is not proposing to have the children for longer than he is entitled, but simply to have them for two weeks out of his holiday time, in accordance with the 2012 orders.

    iv)Any threats to the welfare of the children, by the circumstances of the proposed environment.  The proposed trip is to (country omitted).  The father says that that is a common holiday destination.  (country omitted) is a signatory to the Hague Convention, on Civil Aspects of Child Abduction.  The mother says that she is concerned about what medical facilities are available, and the fact that it is overseas and not easy for her to travel to, should there be a problem.  She also expresses concerns about the fact that the father’s travel itinerary shows a stopover in (country omitted), which is not a member of the Hague Convention country.  She refers to the fact that the father’s brother’s wife is from the (country omitted) and suggests that that means it would be easier for them to stay in (country omitted).

25. I accept that the mother’s concerns are genuine.  The question is whether they are reasonable in the circumstances, and related to the point above is the degree of satisfaction that the Court can have on the assessment of the party’s promise to return to the jurisdiction.  The mother points to her concerns about the father possibly not returning being based on breaches of orders in the past, and one of the things her counsel referred to on the first occasion was the father’s conviction for the breach of an intervention order, and she quite properly pointed out that this was appealed and his sentence of imprisonment was overturned and there was no conviction.  Given that he successfully appealed, the initial sentence cannot be held against him.

26. I think what has probably and quite reasonably caused the most angst for the mother is the father’s actions in seeking to circumvent her signing passport application.  It is reasonable that this would have raised real alarm bells and anxiety for her, particularly in the context of the conflict in these proceedings, and whilst the father might have thought that that would be an easy way of dealing with it, without having to have further conflict with the mother or initiate court proceedings it, I think, has had the opposite effect.

27. Ultimately, it comes down to a matter of balancing the competing considerations.  There is no doubt that children generally can benefit from travel overseas.  It can be exciting.  It is a different experience.  They get to be exposed to other cultures.  It is also the case, in the circumstances here, that it is a family holiday, with extended family that is also of benefit to children. 

28. The trip is of fairly short duration and whilst I accept that Y has various medical issues, and I accept that the mother is genuinely concerned about those issues, the evidence is not as such that suggests that it interferes with her ability to attend school regularly or other activities, and what is apparent from the records is that she has asthma-like symptoms.  It does not appear – even though it has been raised that she has been formally diagnosed with asthma and sometimes it can be other things, there is no doubt that she has had respiratory issues, and one of the things that the mother is concerned about – and it is a reasonable concern that the father needs to be mindful of, is whether or not going to (country omitted), where it can be quite hot in summer, will have an impact on her breathing issues.

1. At my direction, once I stood the matter down to consider the further material, the parties have drafted an order that addresses the father facilitating the mother’s communication with the children, should they go to (country omitted), and also the father being required to obtain top travel insurance and I indicated, when looking at the order, that that should specifically be obtained for Y’s pre-existing medical conditions as, if that is not done, the insurance policy will not be honoured if she has issues related to her pre-existing conditions.

2. On balance, I am of the view that the children would benefit from the holiday but I also think additional orders should be made and that that be that, at least three weeks before the travel, the father take Y to Dr G for a travel consult and seek specific advice about managing Y, should she have any issues with the humidity in (country omitted), and the father is to inform the mother of the outcome of that travel consult within 24 hours of it occurring.

3. As I have indicated previously, much of this case, I think, is borne out of the distrust and conflict that the parties have for each other that both need to take some responsibility for and really need to turn their minds to looking forward as to how they can improve their communication for the benefit of their children.  It is to their credit that, despite the obvious distrust they have for each other, they were able to agree on consent orders with the assistance of lawyers in 2012 and the matter has not come back to court until the specific application for travel, despite the many issues that both parties raise in their material.

4. At nine and seven, the girls cannot help but be aware that their parents do not get on and do not trust each other.  Children are like sponges and they pick up on the non-verbal cues from their parents.  So I am not suggesting that the parents deliberately involve their children in the disputes but the children pick up on all the non-verbal cues that the parents have when the other parent is mentioned and, clearly too, that the mother has some real anxieties about the children when they are in the father’s care and has a lack of confidence in him.

5. The parents would benefit greatly from engaging in an online parenting application such as MyMob or Our Family Wizard, which assists parents communicating in a child-focused manner and in a way that holds both accountable and that can also address issues such as the medical issues and other factors.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  22 December 2017