Lauber and Truman

[2010] FamCA 274

FAMILY COURT OF AUSTRALIA

LAUBER & TRUMAN [2010] FamCA 274

FAMILY LAW – CHILDREN – Interim procedure – Passport application – Travel for specified period

Family Law Act 1975 (Cth) ss 60CC, 64B, 65Y

Ciobo & Ciobo (1996) FLC 92-651
Goode & Goode (2006) FLC 93-286

Kuebler & Kuebler (1978) FLC 90‑434

APPLICANT: Mr Lauber

RESPONDENT: Ms Truman

FILE NUMBER: BRC 913 of 2009

DATE DELIVERED: 29 March 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 29 March 2010

REPRESENTATION

APPLICANT: Appeared in person

RESPONDENT: Appeared in person

Orders

1. That Applicant MR LAUBER may apply for a passport for the child C born … December 1993 without first obtaining the consent of the child’s mother.

2. Subject to compliance with the following paragraph of these orders C born … December 1993 is permitted to travel internationally after 10 April 2010 for the purpose of a holiday to the United Kingdom, returning to Australia on or before 8 June 2010.

3. By 4.00pm on 1 April 2010, the father shall send to the mother by Registered Post:

   (a)       A photocopy of the return tickets for himself and C;

   (b)The address or addresses for which it is claimed that he and C will stay for seven (7) nights or longer during the United Kingdom holiday;

   (c)A phone number at which C can be contacted in cases of emergency.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 913 of 2009

MR LAUBER

Applicant

And

MS TRUMAN

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The parents of C, born in December 1993, and H, born in December 2000, separated in January 2003 and divorced in September 2004.  Now, some seven years later, the parties are still in dispute about parenting issues with respect to the two children.  The parents have, accordingly, been in dispute about their children for the vast majority of H’s life and the majority of C’s life. 

2. That such a situation exists, and that neither have been able to put their differences aside in the best interests of their children, speaks ill of each of them.  There is no shadow of a doubt that both C and H suffer as a result of the fact that their co‑parents, who they have an absolute right to be parented by, and to love equally unequivocally, and without condition, are likely to be damaged by the ongoing conflict between their parents. 

3. The latest manifestation of that conflict sees the father applying for orders that would facilitate the issue of a passport for C, and a resulting ability for he and C to travel to the United Kingdom for a period of about eight weeks, commencing 10 April 2010.  The mother opposes that application. 

4. The father says that he has been promising C a trip to the United Kingdom for some time and in mid‑2008 booked tickets to facilitate that trip.  Those tickets have been booked and paid for. 

5. It is of considerable significance to note that C has lived with her father full‑time since about October 2004, that is to say, for more than five years, and since she was approximately 11 years of age.  In that time she has spent decreasing amounts of time with her mother such that, at the current time, the relationship has deteriorated to such a point whereby there is no meaningful contact between them. 

6. H lives with the mother. The material reveals a dispute between the parties about her co‑parenting arrangements. However, the father, at least, deposes in his affidavit that he is "confident of an amicable outcome in the coming months" with respect to H.

7. Despite the fact that C has been in the full‑time care of her father for over five years the mother opposes the issue of a passport (and the trip) at the current time because of three identified considerations.  First, she says that the father is alcohol dependent and has had problems with alcohol in the past.  Secondly, she says that his mental health status is such that she is concerned about the prospect of a relapse occurring during the time that C is with him in the United Kingdom. Thirdly, she says that the supervised time with H at a contact centre (arising by reason, it seems, of concerns about the father's alcohol dependency) will be interrupted such that there is a prospect that the time between the father and H will be interrupted for longer than the eight weeks entailed in the trip.

8. The factual situation thus posited is complicated by the fact that there are outstanding criminal charges involving, apparently, an altercation between the mother's husband and the father.  Understandably enough, there are conflictual accounts in respect of that.  The father alleges that when C approached her mother and asked for the mother to sign her passport, the mother said to C that she would sign the passport if the assault charges were dropped.  The mother denies this account and says that it was C who raised that topic in that manner. 

9. These proceedings occur in a truncated form by reason of the pressing need, alleged by the husband, to obtain a passport so as to facilitate the planned travel on 10 April, that is to say, in a couple of weeks' time.  

10. The principles enunciated in decisions of the Full Court, such as Ciobo & Ciobo (1996) FLC 92-651 and Goode & Goode (2006) FLC 93-286, apply to these proceedings. That is to say, if the proceedings involve the making of a “parenting order”, as defined, the statutory Objects, Principles and Considerations referred to in the legislation must be applied. They are applied, though, within the context of significantly truncated proceedings during which factual findings cannot be made, save in circumstances where there is either no real dispute about the facts or where the veracity of a statement is not reasonably open to challenge. There are few factual issues in this case that fall into that category.

11. In Kuebler & Kuebler (1978) FLC 90‑434 the Full Court set out a number of factors which ought be considered in applications of this type, that is applications to, in effect, temporarily remove a child from the Commonwealth of Australia. The factors identified by the Full Court in that decision are:

    a)The length of the proposed stay out of the jurisdiction;

    b)The bona fides of the application;

    c)The effect on the child of any deprivation of access;

    d)Any threats to the welfare of the child by the circumstances of the proposed environment;

    e)The degree of satisfaction in which the court based its assessment of the parties that a promise of a return to the jurisdiction would be honoured.    

    That court made it plain that the then statutory edict to consider the paramountcy of the best interests of the children would apply.

12. That decision was handed down a considerable period of time before the amendments to the legislation effected by the Reform Act.  Applications must now be dealt with in the Act as amended by the Reform Act.  Accordingly, if the application before me involves the making of a parenting order, the specific statutory provisions of Part VII of the Family Law Act 1975 must be taken into account. 

13. Section 64B(1) defines a "parenting order" as follows:

    (a)An order under this Part, (including an order until further order) dealing with a matter mentioned in subsection (2) or subparagraph (b), an order under this part discharging, varying, suspending or reviving an order, or part of an order described in paragraph (a).

14. Subsection (2) of that section goes on to specify a number of specific matters, included among which are orders relating to the:

    person or persons with whom a child is to live or 

    the time a child is to spend with another person or other persons or

    the allocation of parental responsibility for a child

    the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of a child.  

15. Subsection 65Y of the Act provides:  

    If a parenting order to which this subdivision applies is in force, a person who is a party to the proceedings in which the order was made, or a person who was acting on behalf of, or at the request of, a party must not take or send the child concerned from Australia to a place outside Australia except as permitted by subsection (2).

16. Subsection (2), provides for that to occur upon the making of an order of the court.  No current parenting proceedings are live between the parties with respect to C, although there are live parenting proceedings with respect to her younger sister, H.

17. The parents of C share parental responsibility, as that term is defined in respect of both children (subject to order of the court).  It seems to me that a decision about whether a child can leave the country, and the terms and conditions upon which a child can leave the country, is an aspect of parental responsibility.  It seems to me, then, that orders made with respect to that issue are orders made, at least in part, in respect of parental responsibility and are accordingly parenting orders within the meaning of the Act. 

18. As a result the mandatory Considerations, and other matters such as the Objects and Principles of the legislation, must be applied to these proceedings, albeit that an examination of section 60CC shows that the Considerations there enumerated may not elegantly fit within the facts of this particular case, or, indeed, applications of this type.

19. The issues earlier outlined by me can be seen to find reflection in the statutory Considerations.  First, the concerns expressed by the mother can readily find reflection in the second of the Primary Considerations provided for in section 60CC(2)(b).  The issues raised by the mother squarely raise the potential of a need to protect C from what might be broadly described as “neglect" as that expression is used in the subparagraph by reason of concerns about either alcohol abuse or a deterioration in the father's mental state. 

20. So, too, the mother's third concern can plainly be seen to refer to a number of matters referred to in the Additional Considerations, not least of which is the nature of the relationship of C with her sister H, and the ability, in the circumstances under consideration, of the parents to facilitate and encourage a close and continuing relationship between H and the father.

21. So, too, the likely effect of changes in H’s circumstances, by reason of the absence of the father, and also C, from H’s life for a minimum of eight weeks, or, as asserted by the mother, longer than that, is an important matter. And, at least inferentially, the "responsibilities of parenthood" might also be seen to be raised as an issue. 

22. Equally, the proposal by the father throws up a number of statutory Considerations in its own right. 

23. First, he says, at least inferentially, that C travelling to the United Kingdom with him, and what he says is a resulting relationship between C and her maternal grandmother, and indeed himself, during that holiday period, is a significant component of the meaningful relationship which he has with C. 

24. Similarly, his proposal calls into issue the nature of the relationship between C and her maternal grandparent, and, although for a short period of time, it does effect a change in C’s circumstances which, on the father's material, he says, is likely to be beneficial by providing her with a foundation for further opportunities, including the potential for her to travel as she matures and reaches adulthood.

25. It is clear that alcohol abuse on the part of the father has been a live issue in proceedings previously conducted between the parties.  So much is that so that orders have been made by the court for the father to be participate in random testing at the instance of the independent children's lawyer with a view to ascertaining his use or abuse of alcohol. 

26. The evidence reveals that one set of test results has been obtained.  The father says that he has had two tests now and he anticipates being asked, at some random time prior to his proposed departure, to undertake a third.  The mother concedes, from a lay point of view, that those first test results are "favourable", by which I took her to mean are not indicative of current alcohol abuse. 

27. The father says that he did have a problem with alcohol for a period of 18 months but such problem is under control.  The mother says that Bell J in earlier proceedings asked the father whether he attended Alcoholics Anonymous or similar, and the father said he did not.  He said, though, that he doesn't drink alcohol at all anymore. 

28. One might have some concerns about someone who admits to a dependency on alcohol for a significant period of time, such as, on his case, 18 months, and now says that he doesn't drink at all without apparently any real support in that respect. Nevertheless, the evidence before me in these truncated proceedings, consists of, on the one hand, the father's sworn evidence that he no longer has a problem with alcohol, doesn't drink anymore, and that evidence is, to a certain extent, corroborated by the first of the random tests postulated by court orders.  As against that, is the mother’s concern, soundly based as is seems to me on the evidence, that alcohol abuse may occur. 

29. Nevertheless, in my view, the evidence before me favours a conclusion that, at the present time, the abuse of alcohol is not the same issue that it was at a time previously identified by the father.

30. Next, the mother says that there are concerns about the father's mental state and her concern is that he may have a “relapse" while he is in the United Kingdom. 

31. Two things, it seems to me, can be said about that.  First, the father admits in his most recent affidavit that he suffers from  "acute post traumatic stress disorder" and that, together with, I gather, other medical conditions enumerated by him in that affidavit, have resulted in him being in receipt of a disability-type pension from the Victorian Emergency Services. 

32. He says in his affidavit that he is retired.  I gather from what he said from the bar table that, potentially, he is able to resume that employment but there are no prospects of that occurring.  In that respect I note that he swears that he retired on ill‑health grounds in December 2003.

33. Apart from that evidence, there is before me today in respect of this application, no evidence to substantiate an assertion that a deterioration in the father's mental health, such as to present a risk to C on an eight-week trip to the United Kingdom, is likely to occur.  Moreover, the mother points to no such evidence but simply raises it as a nebulous concern.  It might be that, on the basis of the father's own admission a "concern" might be soundly based, but there is no evidence before me to suggest that any such deterioration in his mental state is likely, particularly in circumstances where he is on a period of holiday time in the United Kingdom with his daughter.  In that respect it is also, in my view, of considerable significance to note that C has lived with him full‑time for five years now.

34. The father says that there have been about eight contacts with the Department of Child Safety during that period of time, including a contact with that Department in about January 2009 where a temporary protection order was made in respect of H and where she says the Department would have made such an order in respect of C but for her age.  There is no other evidence before me about the facts and circumstances surrounding that contact between the department and the father and the children save that which is asserted by the mother in her affidavit as I have just indicated. 

35. C is now 16 years of age.  In fact she turned 16 in early December, so she is about 16 and four months years of age.  Her views are of very considerable significance in respect of any parenting order made by the court.  There is no doubt, on the material before me, that she is very enthusiastic about the forthcoming holiday to the United Kingdom, and indeed the mother as I apprehend it, doesn't seek to suggest otherwise. 

36. Moreover, the evidence before me is that C, for whatever reasons, and by reason of whatever past facts and circumstances, has indicated an unwillingness to develop and continue a relationship with her mother.  Whilst the mother makes criticisms of the father in that respect, which may or may not be justified, the fact remains that even on the mother's case, she has, effectively, had no meaningful contact with her now 16 year old daughter since she was about 14.

37. The father deposes that the trip to the United Kingdom occurs "after years of promise to [C]."  The trip has been booked and paid for and the father deposes to the loss of about $7000 in the event that the trip cannot be undertaken. 

38. Further, the father deposes to the fact that he proposes staying with the mother's mother during that eight week holiday.  He deposes to the fact, not denied by the mother, that the mother and her mother do not have a relationship.  The father deposes that the mother's family invited he and C to London.  He says:

    I discussed with [the maternal grandmother] having regard to the domestic issues whether it, "was appropriate" we stay with them.  [The grandmother], her new partner, [P], her three sons “insist we stay with them."

39. The mother, in response to the father's affidavit, says that the father: 

    States he intends to travel to Scotland and Ireland with my family.  I spoke to my brother on 20 March 2010 and he was not aware that [the father] and [C] were even coming to England in April, let alone travel the country with them.  

40. I took the father to specifically deny that assertion but, in any event, the father makes it plain in his affidavit that the mother has three brothers, M, R and A and that he liases with them by telephone and the Internet.  He speaks in particular of A who was an officer with the London Emergency Services Department and of a consequent shared interest between them as a result.  The mother in her affidavit doesn't specify which “brother" she speaks of during the telephone conversation on 20 March 2010.

41. It seems to me that the two risks identified by the mother are ameliorated by the matters to which I have referred and are also ameliorated to a certain extent by the fact that the trip to the United Kingdom anticipates having as its base a family environment consisting of the maternal grandmother and C’s uncles who will have significant contact - on the unchallenged evidence of the father - with C and the father during the United Kingdom visit.

42. The third of the matters raised by the mother is plainly a matter of considerable concern.  H is 9, having had her birthday also in December.  It is undoubtedly important for her to continue to have a relationship with her father.  That relationship at the moment consists of supervised time and the mother says that there will be an curtailment, not only for the eight weeks in which the father intends travelling to the United Kingdom, but an additional time by reason of the father, as it were, losing his place at the contact centre and needing to, as it were, start again. 

43. The father appears to concede that there will be at least some additional time lost as a result of this trip, because he, in response, says that he will be "first cab off the rank" at the contact centre when he returns to Australia after the holiday.  The mother asserts that the contact centre didn't know of the father's prospective trip. The father denies that, saying that he had already advised them of it.

44. The proposed holiday occurs in circumstances where, tragically for these two children, their living arrangements, and apparently their loyalties, are divided.  That this is likely to have long term deleterious ramifications for them can hardly be doubted. 

1. It is, however, a reality and, more importantly, has been a reality for the last five years.  Specifically, then, it has been a reality for these two children since H was about 4 and C about 11.  The circumstances in which the mother expresses a concern about the interruption in time between the father and H needs to be seen in that context, because I consider that particular context to be very important. 

2. Further, and in any event, the issue to be determined involves a balance between the best interests of the girls.  The interruption to H’s time might plainly be seen as deleterious for her.  The inability for C to travel to the United Kingdom with her father might be seen as plainly deleterious to C.  She, C, has made no bones about the fact that she wants to go and there is, it seems to me, likely to be a deleterious affect for her if she is not permitted to go.

3. A factor not mentioned by either of the parties, including specifically the mother, is the likely impact upon any future relationship between C and her mother, if the mother is seen as being the person who, as it were, prevents C from travelling overseas for this much promised trip.  That too, it seems to me, is a matter that ought be taken into account pursuant to the additional considerations enumerated within section 60CC. 

4. Ultimately, I am not persuaded that the risk identified to C in each of the first two of the three matters identified by the mother, or them in combination, is such to result in the order sought by the father not being made. 

5. Similarly, in respect of the third of the matters, whilst I accept that there is a balance involved in the best interests of two children, divided both in their living arrangements and, it seems, loyalties, nevertheless, in my view, the balance is in favour of making orders sought by the father.

6. In arriving at that decision I have, as should be clear from my earlier reasons, taken into account those matters referred to by the Full Court in Kuebler & Kuebler. 

7. Specifically, I've taken into account the fact that the length of the proposed stay out of the jurisdiction is for an eight week holiday and the father in that respect annexes the itinerary to his affidavit which sees C returning to Australia on 7 June 2010.

8. I have considered the bona fides of the application.  It seems to me that little challenge is made to the fact that C and the father intend travelling to the United Kingdom for a holiday so that C can see her United Kingdom relatives and it is not seriously suggested, nor do I find, that there is any mala fides or lack of bona fides in the making of the application.

9. There is no effect for C, in terms of deprivation of time with her mother, in light of the sad circumstances currently attending their relationship.  There is, however, a diminution in the amount of time that H will spend with her father and I have taken account of that factor in weighing the considerations that I consider applicable to the application.

10. What the Full Court described in Kuebler as a “threat to the welfare of the child by the circumstances of the proposed environment" I have taken into account, by looking at the risks said by the mother to attend the proposed trip, and there is no suggestion that the proposed environment is, of itself, likely to pose a risk to C.

11. Finally, the Full Court requires as part of the exercise of the discretion involved in the making of orders of this type, that I consider the degree of satisfaction in which the court based its assessment of the parties that a promise of a return to the jurisdiction would be honoured.  There is nothing on the material before me that suggests that it would not be honoured. 

12. Furthermore, the father annexes a copy of his itinerary, and I propose to make orders requiring the father to send to the mother a photocopy of the relevant tickets and to provide other information such that a line of communication can be opened, should the need arise, during the trip.  I note that the United Kingdom is a Hague Convention signatory. 

13. In all of those circumstances it seems to me, in the exercise of my discretion, that I should grant the father the relief that he seeks.  I order accordingly.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  14 April 2010