Lees & Halstead and Anor
[2018] FamCA 970
•23 November 2018
FAMILY COURT OF AUSTRALIA
| LEES & HALSTEAD AND ANOR | [2018] FamCA 970 |
| FAMILY LAW – CHILDREN – Interim – International travel – Where one party seeks to undertake international travel for up to 14 days with the children – Whether a security sum is required – Where there is sufficient equity in a property the parties own – Relevant factors the court should consider in interim travel applications per Kuebler & Kuebler (1978) FLC 90-434 and Line & Line (1997) FLC 92-729 |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC |
| Halstead & Lees & Anor (2018) FCCA 425 Kuebler & Kuebler (1978) FLC 90-434 Line & Line (1997) FLC 92-729 Marvel v Marvel [2010] FamCAFC 101 |
| APPLICANT: | Ms Lees |
| 1st RESPONDENT: | Mr Halstead |
| 2nd RESPONDENT: | Ms Halstead |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of SA |
| FILE NUMBER: | ADC | 4768 | of | 2017 |
| DATE DELIVERED: | 23 November 2018 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 16 November 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Pyke QC |
| SOLICITOR FOR THE APPLICANT: | Mellor Olsson |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr Jordan |
| SOLICITOR FOR THE 1ST RESPONDENT: | Howe Jenkin |
| COUNSEL FOR THE 2ND RESPONDENT: | Ms Lewis |
| SOLICITOR FOR THE 2ND RESPONDENT: | Douglas Hoskins Legal |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Roberts |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Independent Children's Lawyer |
Orders
That the mother be permitted to remove X born … 2013 (“X”) and Y born … 2015 (“Y”) (collectively “the children”) to travel outside the Commonwealth of Australia for fifteen (15) consecutive days in the month of December 2018 for the purpose only of travel the United States of America (“USA”).
That the travel be subject to the following conditions:-
(a)That the mother provide the father with an itinerary of the proposed travel, which shall include details of all airline, flight numbers, times of departure and arrivals of all flights to be undertaken by the children together with all relevant addresses of all accommodation at which the children will be staying and to do so via solicitors not less than seven (7) days prior to the proposed date of travel;
(b)The mother shall confirm in writing by her solicitors that the children have been returned to the Commonwealth of Australia at the conclusion of the period;
(c)That the maternal grandmother shall accompany the children on all flights from Australia to the USA at the commencement of the proposed trip and from the USA to Australia at the conclusion thereof.
That the mother have sole parental responsibility for the children and is hereby authorised to be the sole applicant and sole signatory to an application for a passport to issue for Y born …2015 and do exercise sole parental responsibility in relation to all necessary procedures associated with such application pursuant to the Australian Passports Act 2005 (Cth), the Australian Passports Determination 2015 and the requirements of the Commonwealth Department of Foreign Affairs and Trade.
That the mother shall retain in her custody at all times the Passports for the children and that any application for a passport to issue for Y be prepared and lodged at the mother’s sole cost.
That the father and the paternal grandmother be restrained and an injunction is granted restraining each of them or their agent from attending at the Adelaide Airport on the day and time of the departure and arrival of the children.
That in the event that the children do not return to the Commonwealth of Australia on or before to 31 December 2018 THEN leave is given for the father to list on forty eight (48) hours’ notice an application seeking the transfer of the mother’s interest in the property situate at B Street, C Town, South Australia… (“the C Town property”) to the father, or in the alternative for an application that the C Town property be forthwith placed on the market for sale and for him to receive such of the net proceeds of sale as maybe required to enable the father to pursue the return of the children to the jurisdiction.
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 Lees & Halstead and Anor 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 ADELAIDE |
FILE NUMBER: ADC4768 of 2017
| Ms Lees |
Applicant
And
| Mr Halstead And Ms Halstead |
2nd Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By Application in a Case filed 28 September 2018 Ms Lees (“the mother”) seeks orders that she be permitted to travel to the United States of America (“USA”) with X born in 2013 (“X”) and Y born in 2015 (“Y”) (collectively “the children”) for a period of fifteen (15) days during the month of December 2018.
The mother seeks further orders that will place conditions on the children’s travel namely, that she will provide a full itinerary including flight and travel details and the addresses of all accommodation at which the children will be staying and a confirmation of the children’s return to Australia following the period of travel.
The mother considered that Mr Halstead (“the father”) would not give his consent and accordingly she sought an order that she be the sole applicant and signatory for the issue of a passport for Y. The mother currently retains a passport for X. The father now consents to that order.
Whilst the mother seeks an order that anticipates future overseas travel, I propose to deal with the current application on the basis of the proposed travel to the USA during the month of December 2018 only.
The mother also seeks an order restraining the father and Ms Halstead (“the paternal grandmother”) either personally or by their instruction to any agent from attending at the airport on the day and time of the children’s departure and return.
The application is supported by the mother’s Affidavit filed 28 September 2018 and her Affidavit filed 13 November 2018 in response to the Affidavits of the paternal grandmother filed 6 November 2018 and the father filed 6 November 2018.
By reference to her response, the paternal grandmother opposes the overseas travel and whilst the father’s primary position is also to oppose the mother’s application, he seeks orders in the alternative that if the children’s travel is allowed he does not oppose the mother having sole authority to obtain a passport for Y, but seeks the mother cause the sum of $35,000 to be transferred from her D Bank account to the Trust Account of the father’s solicitor by way of security.
BACKGROUND
I have had regard to the judgment of Judge Brown bearing the citation Halstead & Lees & Anor (2018) FCCA 425.
The current orders provide that the children live with the mother and she be responsible for making parenting decisions.
The orders made no provision for the children to spend time with the father and by Amended Order made 1 June 2018 the children’s time with the paternal grandmother is suspended.
Given his Honour’s detailed consideration of the relevant history of this unfortunate matter I propose to adopt his Honour’s summary of the background events.
MOTHER’S APPLICATION
The mother seeks to take the children to the US to participate in her brother’s wedding ceremony. If allowed to go the mother and the children will be travelling with members of the maternal family but in particular the maternal grandmother.
I accept the mother’s evidence that the maternal grandmother will also assist the mother with the children during the land component.
The mother’s brother is her only sibling and whilst the mother would like to attend the wedding, if the children are not permitted to travel with her then she will not go. The current circumstances are such that there would be nobody able to care for the children in the absence of her family.
The mother is confident that notwithstanding X’s special needs he will cope with the overseas travel. It is not anticipated that the trip would be arduous for Y.
To the extent that cost is a relevant consideration, the mother’s brother has agreed to assist in the travelling costs of the mother and the children.
The paternal grandmother contends that the Court should be suspicious of the mother’s motive in seeking to travel with the children to the USA. The order of 23 February 2018 which provided for the children to spend time with the paternal grandmother was suspended on 1 June 2018. In order to support the suspension of the orders, the mother deposed to serious mental health issues which would likely be exacerbated if she was forced to comply with the orders that the children spend time with the paternal grandmother.
The paternal grandmother refers to the mother’s Affidavit of 9 March 2018 where the mother deposed to delusional thoughts, disorientation and a mental health episode sufficient to require hospitalisation.
The mother’s psychiatrist has diagnosed her with Post Traumatic Stress Disorder (“PTSD”) and by reference to Dr E’s report as annexed to the Affidavit of the mother’s then solicitor filed 28 April 2018, she also displays some paranoid traits.
A significant issue has arisen in respect of the provenance of emails that the mother considered were threatening. The mother contended that the content of the emails were such that it exacerbated her mistrust of the father and the paternal grandmother and fuelled her anxiety. The paternal grandmother and the father deny any knowledge of the emails and certainly deny that they or any agent or person known to them were the authors of the emails. They consider that the mother may have concocted the emails to enable her to rely upon them as a justification for the suspension of the orders for the children to spend time with the paternal grandmother.
The mother and the paternal grandmother have unresolved applications seeking the forensic examination of the mother’s electronic devices which may assist to identify who sent the emails.
At the hearing the mother’s Queen’s Counsel submitted that the mother does not assert that the emails were authored by the paternal grandmother or on behalf of the father, but relies upon the adverse impact of her having received them.
The paternal grandmother is also concerned that X’s diagnosis of Autism Spectrum Disorder may place him at risk given the rigors of international travel and a disruption to X’s stability both in terms of his home or domestic environment, but also in respect of the ongoing therapy.
The father’s opposition is based upon his fear that the mother will not return the children to the jurisdiction.
He argues that she is not currently working in her business and in any event, it is electronically based and could be operated from the USA. He contends that she has no significant financial ties in Australia and if her presentation of her psychiatric wellbeing and stability is at serious risk should orders be made that the children spend time with the paternal family, then there is the real potential for her to not return the children rather than risk an order that she either opposes or may have an adverse impact upon her health.
The father’s counsel did concede that if the mother was permitted to take the children to the USA then her interest in the former matrimonial home at C Town would represent sufficient security. The father considers that the equity in the C Town property is about $200,000 depending upon the valuation or its sale.
The mother does not currently reside in the C Town property and because of his serious injuries, the father is not currently able to do so. The property is vacant. The mother seeks that the property be sold and has sought and obtained a mortgage moratorium for about three months. The father’s position in respect of the property is uncertain. It may be that he wishes to retain the C Town property but has not yet considered whether he is in a financial position to take over the mortgage payments.
RELEVANT PRINCIPLES
In Kuebler & Kuebler (1978) FLC 90-434 the Full Court set out a number of factors that are relevant to an application for children to travel overseas including the length of stay, the genuineness of the application, the effect on the child of any interference or interruption with orders for time between children and other parties and the extent to which the Court can be satisfied that the children be returned to the jurisdiction together with any threat to the welfare of the children in terms of the proposed destination of travel or environment.
In Line & Line (1997) FLC 92-729 the Full Court relied upon Kuebler (supra) and further considered that it was a relevant factor as to whether a parent is to travel with a child to a country that is, or not, a signatory to the Convention on the Civil Aspects of International Child Abduction 1980, namely the Hague Convention. The Court considered that in relation to an application for the children to be taken to the USA for a holiday, given the mother was born in the USA there was a risk that she may not return the children to the jurisdiction, however, it was a risk that could be lessened by fixing an appropriate level of security for the children’s return.
In fixing an appropriate level of security the Court may take into account the following as outlined by the Full Court in Line (supra) at 83,846-47:-
(a)That the sum must be sufficient to “realistically entice the person removing the children to return” and to enable the party remaining in Australia to take whatever action as may be necessary to have the children returned;
(b)The extent to which the risk of the mother not returning the children can be ascertained;
(c)The financial circumstances of the parties; and
(d)Whether the country of travel is a signatory to the Hague Convention.
INTERIM APPLICATION
In Marvel v Marvel [2010] FamCAFC 101 the Full Court considered the approach to be adopted when presented with contested evidence on an interim hearing:-
120.As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
I consider that a cautious approach should always be adopted in circumstances where the evidence has not yet been tested. That does not mean that the Court is not able to make an appropriate interim order until and unless the evidence has been tested. At an interim hearing the Court should generally be risk-averse and cautious.
The mother’s application must be considered pursuant to s 60B of the Family Law Act 1975 (Cth) (“the Act”) which outlines the objects and principles underlying Part VII of the Act.
Section 60CA requires that in deciding whether to make a particular parenting order the best interests of the children are the paramount consideration. In order to determine what is in the children’s best interests the Court must consider the provisions of s 60CC as to the primary considerations contained in s 60CC(2) and the additional considerations in s 60CC(3).
CONCLUSION
The mother seeks to travel with the children to the USA for a period of 15 days.
I am satisfied that the purpose given by her for travel, namely her brother’s wedding, is genuine.
The mother is not an American citizen and has no ability to remain in the USA which is in any event a signatory to the Hague Convention.
The mother is currently engaged in lengthy litigation with the father that involves issues of property settlement. Whilst the property of the parties is minimal, I bring to account the father’s solicitor’s concession that the mother’s interest in the C Town property would represent a greater level of security than the monetary sum sought by the father in his alternative orders.
It is reasonable for the mother to seek to attend her brother’s wedding. There is no other option for the children to remain in the care of any other person.
I accept that X has special needs as did his Honour Judge Brown when the order was made that the mother have sole parental responsibility.
The mother filed a further Affidavit on 15 November 2018. It annexed a psychiatric report from Dr E dated 13 November 2018.
Dr E confirmed that he had no concerns as to the mother’s capacity to maintain her mental health and considered that the break from the current litigation may well assist in the mother’s recovery from PTSD.
X has had an ongoing involvement with Dr F, psychologist, for approximately 18 months. The mother consulted Dr F as to whether there would be any concern with respect to X’s ability to undertake the proposed travel. By his report dated 8 November 2018 the following appears:-
It is my understanding that [X] will be accompanied by his mother, [the mother] who has a very good understanding of his needs and a sound ability to support him in dynamic and sensitive ways. With appropriate preparation and planning, I consider that [X] will be able to manage and enjoy this opportunity. [The mother] knows that [X] will require preparation and prompting ahead of daily activities, and opportunities for relaxation and ‘down time’. She understands his sensory needs and is able to implement the appropriate management strategies. Moreover, [the mother] and [X] will be accompanied by several family members and therefore will have a good support network available to them.
The position of the Independent Children’s Lawyer (“ICL”) was to support the mother’s application, but with a condition that the Court considers the extent the extent to which the maternal grandmother should be required to assist the mother.
I am satisfied that the maternal grandmother will accompany the mother and the children for both the travel component, but also the land component of the trip.
In the circumstances of this case, I consider that the mother’s trip is appropriate and that it is in the best interests of the children that they accompany her. There is no other viable option for the children’s care during the relevant period. At present neither the father nor the paternal grandmother are disadvantaged in terms of any order for time spent with them.
I propose to make orders that will allow the mother to take the children out of the Commonwealth of Australia to the USA conditional upon the maternal grandmother accompanying the mother and the children on the flights both to the USA and the children’s return to Australia.
I make orders as appear at the commencement of these reasons.
I certify that the preceding forty eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 23 November 2018.
Associate:
Date: 23 November 2018
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