Krawiec and Haykal

[2015] FamCA 1218

FAMILY COURT OF AUSTRALIA

KRAWIEC & HAYKAL [2015] FamCA 1218

FAMILY LAW – CHILDREN – Leave to remove the child from Australia for the purpose of a holiday in the United States of America – Where judgment of the substantive proceeding is reserved – Where the father said he would give consent to the application on certain conditions – Where the Independent Children’s Lawyer supports the mother’s application – Where the mother was previously given permission by the Court to travel overseas with the child and returned to Australia in accordance with the orders – Where there is no reason why this Court would not exercise its discretion to make the orders as sought by the mother – Where it is in the best interests of the child to be able to travel – Orders made permitting the mother to travel with the child for a specified period.

Family Law Act 1975 (Cth)

APPLICANT: Ms Krawiec

RESPONDENT: Mr Haykal

INDEPENDENT CHILDREN’S LAWYER: Mr Holmes

FILE NUMBER: SYC 731 of 2009

DATE DELIVERED: 18 December 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 18 December 2015

REPRESENTATION

FOR THE APPLICANT: Ms Krawiec in person

FOR THE RESPONDENT: Mr Haykal in person

SOLICITOR FOR THE INDEPENDENT CHILD LAWYER: Mr Holmes of KD Holmes

Orders

1. That the mother is granted permission to remove the child N born on … 2002 from Australia for a holiday to the United States of America departing Sydney on 12 January 2016 and returning 28 January 2016.

2. That the child’s passport is to be released to the mother by the Registry Manager Sydney.

3. That the mother is permitted to apply for any replacement Australian passport for N notwithstanding the absence of the father’s signature and the Court requests the appropriate Commonwealth authorities to assist the mother and the child in this regard.

4. That the child’s passport be returned to the Registry Manager Sydney within 7 days of the child’s return to Sydney.

5. That the Independent Child’s Lawyer’s costs are reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Krawiec & Haykal has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 731 of 2009

Ms Krawiec

Applicant

And

Mr Haykal

Respondent

REASONS FOR JUDGMENT

1. This is an oral application by Ms Krawiec (“the mother”) for orders which would have the effect of permitting the mother to remove the child N (“the child”), born in 2002, from Australia, for the purposes of an overseas holiday to the United States of America, departing not earlier than 11 January 2016 and returning to Australia not later than 28 January 2016. 

2. I gave leave to the mother to make an oral application to this effect, as I had relisted these proceedings before myself on 15 December 2015, in circumstances which will become clear very soon. 

3. The child’s father is Mr Haykal (“the father”).  The father would consent to the child being removed from Australia for such holiday, but only on the basis that the Court make an order that he be permitted to have a telephone conversation with the child for not more than five minutes prior to the child departing.

4. On 10, 11 and 12 August 2015, I heard substantive applications by the parents concerning the parenting arrangements which would be in the best interests of the child and, at the conclusion of the hearing, I reserved judgment.  Unfortunately, time has not permitted completion of the judgment.  Amongst the orders sought in the mother’s application in the substantive proceedings, were orders to the effect that she be permitted to obtain the child’s passport, which was being held by the Court, or to obtain a replacement passport for the child in the absence of consent by the child’s father to provision of such passport, and to be permitted by the Court, to travel overseas with the child. 

5. The mother had anticipated at the time that she sought that order, and certainly by the time that she put in place the bookings for both the airline travel and also the accommodation, that this Court would have completed the judgment by this time. 

6. The mother has made arrangements to take a holiday with the child, her partner and his two children.  They plan to travel on 11 and 12 January 2016 to have a holiday at Town Z but via Disneyland.  So that the bookings which the mother has made would be to leave Sydney on 12 January 2016 to fly to Los Angeles with Airline Y, to go to Disneyland, as I understand it, then to fly from Los Angeles to Town Z on 18 January 2016. 

7. Then the mother’s return booking is from Los Angeles to Sydney, departing Los Angeles on 26 January 2016, again, flying with Airline Y.  And the mother has pointed out that given the time difference between the United States and Australia, they would be returning on 28 January 2016. 

8. The mother was previously given permission by the Court (in December 2011) to holiday overseas with the child and also the child’s older brother, who is now 18 years of age.  That overseas travel was to England and to the United Arab Emirates.  The mother returned the children to Australia, as she was required by the Court to do. 

9. In further support of the application, the mother says that she is the manager of a business in Sydney, a position that she has held for a long time. 

10. Her partner, Mr B, who will be travelling with her and the children also operates his own business in Sydney.  The mother says that they have no interest in remaining overseas after the holiday.  The mother undertakes to the Court to return to Australia, with the child, in accordance with the travel arrangements which form the basis of her application for the order which she is seeking. 

11. The father says that he will give his consent to his daughter having this holiday, that he does not wish to stand in the way of the child having this holiday with her mother and he says he loves the child dearly.  He has been involved in litigation in this Court now over many years.  He had also hoped that the Court would have been able to provide a judgment and make some orders in these proceedings by this time.  And all that he asks is five minutes with the child on the telephone. 

12. The difficulty that I have about the position which the father is taking is that the matter of his relationship with the child is the matter which is in contest and in issue in the substantive proceedings.  In giving the mother leave to make her oral application in the circumstances to which I have referred, and in circumstances where she was expecting that the court would have provided judgment, I have endeavoured to be very careful not to encroach on the evidence and the submissions made in the substantive proceedings. 

13. I say this because the parents have been involved in this Court over such a long time in respect of parenting issues.  And I am most concerned not to contaminate the quite complex matters which are before the Court in the substantive hearing. 

14. I must say I would have preferred to see a position where the father could have found himself able to have provided his unconditional consent to his daughter having the enjoyment of a holiday overseas with her mother.  But I can understand why that has not been forthcoming. 

15. The mother’s application is supported by Mr Holmes for the Independent Child Lawyer.  Mr Holmes did not support the conditions which the father imposed on his consent namely that he have a telephone conversation with the child.

16. In all the circumstances, and taking account of what I know of the parties and the children in these proceedings, I can think of no reason why this Court would not exercise its discretion to make the orders as sought by the mother. 

17. I would struggle to accept that it would not be in the best interests of the child to be permitted to have this holiday in the United States.  Based on what I know of the parties and particularly the mother, and particularly bearing in mind the earlier occasion on which the mother was entrusted with the responsibility to return the child to Australia, and she did so, I do not have any sense at all that the mother would fail to return the child to Australia in accordance with the orders.

18. I cannot think of any reason why it would not be in the interests of this child to be able to enjoy her holiday with her mother overseas.  Accordingly, in all the circumstances, in my view, it is in the interests of the child to be able to undertake this travel on the basis submitted. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 18 December 2015.

Associate:     

Date:              29 February 2016