Lees & Halstead and Anor - [2018] FamCA 970

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lees & Halstead and Anor

Details

AGLC: Lees & Halstead and Anor [2018] FamCA 970
Case: [2018] FamCA 970
Decision Date: 23 November 2018

CaseChat Overview and Summary

In *Lees & Halstead and Anor*, Berman J of the Federal Circuit Court of Australia considered an application by the mother for permission to travel with the parties' two children, X and Y, to the United States of America for fifteen consecutive days in December 2018. The father opposed the application.

The primary legal issue before the court was whether to grant the mother's request for international travel with the children, and if so, what conditions should be imposed to safeguard the father's parental rights and ensure the children's return to Australia. The court also had to determine issues relating to parental responsibility for the children's passports and the father's potential recourse should the children not be returned as agreed.

Berman J reasoned that while the father had concerns, the proposed travel was for a limited duration and to a safe destination. The court applied principles of child welfare and the importance of maintaining both parents' involvement in their children's lives. To balance these considerations, the court imposed several conditions on the travel, including the provision of a detailed itinerary and accommodation details to the father, confirmation of the children's return, and the requirement for the maternal grandmother to accompany the children on flights. The court also clarified the mother's sole parental responsibility for the children's passports and granted an injunction restraining the father and paternal grandmother from attending the airport on the children's departure and arrival.

Finally, the court ordered that the mother be permitted to travel with the children to the USA under the specified conditions. In the event the children were not returned to Australia by 31 December 2018, the father was given leave to apply for orders concerning the transfer or sale of the parties' jointly owned property to fund his efforts to secure the children's return.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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