LINDNER & LINLEY

[2014] FCCA 3115

FEDERAL CIRCUIT COURT OF AUSTRALIA

LINDNER & LINLEY [2014] FCCA 3115

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – overseas travel – passport – one child aged 6 years – where mother wished to take child on holiday to (country omitted).

Legislation:

Australian Passports Act 2005 (Cth), s.11

Family Law Act 1975(Cth), s.65Y

Cases cited:
Line & Line (1997) FLC 92-729

Applicant: MS LINDNER

Respondent: MR LINLEY

File Number: PAC 2393 of 2013

Judgment of: Judge Scarlett

Hearing date: 5 November 2014

Date of Last Submission: 5 November 2014

Delivered at: Sydney

Delivered on: 5 November 2014

REPRESENTATION

Solicitor for the Applicant: Mr McEwen

Solicitors for the Applicant: Miller & Young

The Respondent: In person

ORDERS

UNTIL FURTHER ORDER

1. The Applicant Mother is permitted to take the child of the marriage X born (omitted) 2008 out of Australia for the purposes of a holiday in (country omitted) from (omitted) 2014 until (omitted) 2014.

2. The child X born (omitted) 2008 is permitted to travel internationally as provided by s.11(1) (b) of the Australian Passports Act 2005 and for this purpose the Mother is permitted to apply for the issue of an Australian passport to the child X under the provisions of s.11(4) (b) (I) of the Australian Passports Act 2005.

3. The Mother must deposit the sum of TEN THOUSAND DOLLARS ($10,000.00) with the Receiver of Public Moneys at the Sydney Registry of the Federal Circuit Court of Australia by 28 November 2014 to be held as security until the child returns to Australia.

4. If the child X is not returned to Australia by 28 December 2014 the father is permitted to apply on 29 December 2014 for the said sum of $10,000.00 to be paid out to him.

5. After the child X is returned to Australia the Mother is to deliver the child’s passport to the Sydney Registry of the Court by 31 December 2014 and upon her doing so she is permitted to apply for the said sum of $10,000.00 to be returned to her.

6. The Mother is to advise the Father in writing no later than 28 November 2014 of the proposed itinerary for the trip to (country omitted), including:

   (a)Flight numbers, times and dates;

   (b)Her address or addresses whilst in (country omitted); and

   (c)Telephone numbers upon which she may be contacted whilst in (country omitted).

7. Whilst the Mother is in (country omitted) she is to telephone the Father on one occasion each week to allow him to speak to the child X.

8. The substantive Application is listed for further mention on 3 February 2015 at 10:00 am.    

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PAC 2393 of 2013

MS LINDNER

Applicant

And

MR LINLEY

Respondent

REASONS FOR JUDGMENT

Application

1. The proceedings before the Court concern the son of the parties, a little boy called X who was born on (omitted) 2008.  There have been proceedings between the parties in the Family Court in 2012 where some parenting orders were made by consent.  The Mother seeks a number of parenting orders now and the Father, by his response, consents to most of them being made on a final basis.

Background 

1. However, the parties are at odds about two issues connected to each other which need to be resolved on an interim basis.  The Mother wishes to travel to (country omitted) in December for a period of up to three weeks to encompass a wedding and to visit extended family, and she wishes to take X with her.  To do that she will need a passport for the child.  He has had a passport in the past which, I am informed, has expired. 

2. There has been a history of correspondence and communication between the parties about the obtaining of a passport and about arrangements for travel.  There was an abortive attempt by the Mother to apply for a passport without the Father’s consent, but without the benefit of a court order which, not surprisingly, was unsuccessful.

Submissions

1. The parties have some issues about parenting arrangements, but those are matters that can be dealt with on a final basis on another day.  The Father, in fact, has raised the fact that if the Mother is to be permitted to take the child out of the country for a holiday, so then should he.  It is difficult to argue with that proposition.

2. The Father expresses concern about the Mother taking the child to (country omitted): 

   (1) For reasons of safety; and

   (2) because of his fear that the Mother make the decision either not to return from (country omitted) with the child at all, or to leave the child in (country omitted) to be looked after by extended family members. 

   The Mother denies this.  The Mother says that she has strong ties in Australia and the child, X, also has ties in Australia and attends school here and will continue to do so.

3. The Father has also raised a concern about this particular trip in that it will involve the child travelling in school time on 5^th December.  Mr McEwan, who appears for the Mother, pointed out that the trip would mean that the child was absent from school for a period of about 11 days, and at that time of year and noting the stage of primary school where this child currently is, it was submitted that this would not create a major difficulty for his education.

4. The Mother also submits that (country omitted) is a destination for millions of tourists and that there are many countries where people are able to take their children which have the same advisory notices issued by the Department of Foreign Affairs and Travel as (country omitted).

Consideration 

1. The Court must consider the risks that a child would not be returned to Australia if permitted to leave and, of course, these were set out in the well-known decision of Line & Line[1].  I am mindful of the fact that (country omitted) is not a party to the Hague Convention and, indeed, most (omitted) countries in the vicinity of Australia are not.  That is a factor.

   [1] (1997) FLC 92-729

2. It appears to me that, contrary to the Father’s submissions, the Mother does have ties in Australia.  She resides in Australia with her sister; her sister has deposed to an affidavit supporting the Mother’s case and offering to pledge her real estate by way of a bond.  The Mother is also engaged to be married to a Mr D, a gentleman who was born in (country omitted).  He, too, has offered to provide security for the return of the mother and the child.

3. One of the matters the Court must consider is the best interests of the child.  It would appear to me that this child is of an age that he would benefit from seeing extended family members in (country omitted) and obtain some idea of his heritage, although he is still a young boy; he is not yet seven years of age. 

4. I have considered the damage that could be done to this child’s education by his going on a trip in school time.  He is, on the evidence before me, in first class at primary school.  It would seem to me that time out of school leading up to the end of school term and, in fact, leading up to the end of the school year would be unlikely to create major difficulties as far as this child’s education is concerned.  If he were in high school, I would be less likely to take this view, but as his stage of education is still in the early years of primary school, I do not see that there is any detriment there and certainly no detriment that would outweigh the benefits to this little boy of having a trip to (country omitted) with his mother.

5. I am not persuaded that there is a strong or even a reasonable likelihood that this child will not be returned to Australia by his mother.  It would seem to me that the mother’s ties with this country are far greater than the ties that she has with (country omitted), and even though she has extended family members over there it would seem to be far more likely that at the conclusion of this trip that she would choose to return to Australia where she has made her home.  It would seem to me to be far more likely that the child would be returned to Australia at the end of this three-week trip.

6. There has been the offer of a bond and the pledging of security by means of a charge on real estate.  I am not satisfied that that is appropriate.  In my view, an amount of cash should be deposited.  There have been figures mentioned in Court today.  In my view, the figure of $10,000.00 is an appropriate amount to be deposited at the Court to be held by the receiver of public moneys and that money should be in by 28^th November this year.

7. The matter will go over into the New Year so that in 2015 the Court may consider final orders relating to the parenting issues between the parties, but as time is running out, my view is that interim orders should be made now to permit the mother to obtain a passport and to permit her to take X out of the country, subject to the depositing of a bond and subject to the provision of certain information to the Father.

8. It is for those reasons that I make orders until further orders.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date: 5 November 2015