MacDuff and Seaward
[2014] FCCA 1012
•21 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MACDUFF & SEAWARD | [2014] FCCA 1012 |
| Catchwords: FAMILY LAW – Parenting – urgent application by mother for passport orders and permission for children to travel overseas – father opposes application – long history of litigation between the parties – final parenting orders provide for mother to have sole parental responsibility and for the children to spend supervised time with the father – whether costs order should be made. |
| Legislation: Family Law Act 1975, ss.60CA, 60B, 60CC, 62B, 64B, 65DA(2), 65(1), 65X, 65Y, 65Z, 117 Federal Circuit Court Rules 2001, r.21.02 |
| Goode & Goode (2006) FLC 93-286 Kuebler & Kuebler (1978) FLC 90-434 Line & Line (1996) 21 Fam LR 259; (1997) FLC 92-729 Rice & Asplund (1978) 6 Fam LR 570 at 572; (1979) FLC 90-725 Seaward & MacDuff [2011] FMCAfam 986 Seaward & MacDuff [2013] FamCA 485 |
| Applicant: | MS MACDUFF |
| Respondent: | MR SEAWARD |
| File Number: | SYC 2177 of 2011 |
| Judgment of: | Judge Monahan |
| Hearing date: | 15 May 2014 |
| Date of Last Submission: | 15 May 2014 |
| Delivered at: | Sydney |
| Delivered on: | 21 May 2014 |
REPRESENTATION
| Counsel for the Applicant: | Not Applicable |
| Solicitors for the Applicant: | Self-represented Litigant |
| Counsel for the Respondent: | Not Applicable |
| Solicitors for the Respondent: | Self-represented Litigant |
ORDERS
MS MACDUFF (”the mother”) be allowed to travel to (country omitted), (country omitted) with:
(a)X born (omitted);
(b)Y born (omitted); and
(c)Z born (omitted)
(“the children”), for the period between 23 June 2014 until 13 July 2014, inclusive (“the holiday period”).
The mother cause the children to be seen by a general practitioner prior to the holiday period for an assessment by that general practitioner as to the children’s fitness to undertake travel by air to and from (country omitted).
For the duration of the holiday period the mother is to ensure that:
(a)the children reside overnight in hotel accommodation;
(b)the children do not travel to the areas of (country omitted), (country omitted) and the (country omitted) provinces; and
(c)she has obtained appropriate travel insurance for herself and the children.
Paragraph 5 of the Orders made 15 May 2014 be discharged.
There be no order as to costs however the mother have liberty to re-agitate the issue of the costs of these proceedings in any further proceedings between the parties.
All extant applications be otherwise dismissed.
THE COURT NOTES THAT:
(A)Orders were made on 15 May 2014 which provided for the Applicant to obtain passports for the children without the consent of the Respondent.
(B)Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (“the Act”), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym MacDuff & Seaward is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYC 2177 of 2011
| MS MACDUFF |
Applicant
And
| MR SEAWARD |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant in these parenting proceedings is MS MACDUFF (“the mother”) and the respondent is MR SEAWARD (“the father”).
The children of the parties relationship are Z, born (omitted) 1998 (“Z”), X, born (omitted) 2004 (“X”), and Y, born (omitted) 2005 (“Y”), (collectively, “the children”).
In the present application before me, the mother is seeking orders to the effect that she be permitted to take the children on a three week overseas holiday to (country omitted) to coincide with the forthcoming school term holidays.
In addition, the mother seeks orders that would require the father to sign a passport application of the children, and in the event that he failed to do so, a Registrar of this Court sign the necessary application in lieu of the father. The mother also seeks an order that the father pay her costs associated with these proceedings.
The mother’s application for overseas travel is opposed by the father. He is also opposed to any passport being obtained to facilitate any use by the mother to travel overseas travel with the children to (country omitted).
The mother’s Application was filed in this Court on 4 April 2014. At the time of filing, the mother requested an urgent listing of her Application. The mother’s request for urgent listing was assessed and approved by Registrar Bastiani and her Honour approved its listing to my duty list of 15 May 2014.
When the matter came before me on that day the mother requested the Court to hear and determine her application. This request was opposed by the father who sought that the proceedings be adjourned. For the reasons that the Court gave that day, the Court declined the father’s request for an adjournment and it proceeded to hear the parties in respect of the mother’s present application.
Following the hearing of that application, I indicated to the parties that I would reserve the Court’s decision in respect of whether permission should be granted to enable the children to travel to (country omitted) next month with the mother for a three week holiday.
I also indicated to the parties that I was satisfied that the children’s best interests would be served by allowing the mother to obtain passports for the children without obtaining the father’s consent in order to facilitate any future overseas travel. Although I provided ex tempore reasons for that decision, I will add some further detail in this decision about the relevant law to further explain and my reasons for allowing this to occur.
Given the circumstances, I also made an interim order on 15 May 2014 preventing either party from removing the children from Australia pending the Court’s decision in relation to permission to travel. I will reconsider that restraint as part of this decision.
Unless otherwise stated, any statutory references I make will be to the Family Law Act 1975 (“the Act”) or the Federal Circuit Court Rules 2001 (the “Rules”).
Background
The parties have a lengthy history before this Court and the Family Court of Australia (“Family Court”).
I provided certain background information relevant to the parties in this Court’s decision delivered on 18 August 2011 (see Seaward & MacDuff [2011] FMCAfam 986 at paragraphs [10] to [21]).
In addition, Ryan J provided extensive comments relevant to the parties’ background in the Family Court’s decision delivered on 19 June 2013 (see Seaward & MacDuff [2013] FamCA 485, at paragraphs [9] to [131]. Final parenting orders were also made by her Honour on 19 June 2013. Those orders provided as follows:
“(1) That all previous parenting and other orders in respect to Z born (omitted) 1998, X born (omitted) 2004 and Y born (omitted) 2005 (“the children) be discharged.
(2) That the mother have sole parental responsibility for the children.
(3) That the children live with the mother.
(4) That the children X and Y spend supervised time with the father as follows:-
(a) For a period of 3 hours each calendar month, on a day and time chosen by the mother as far as reasonably possible from the dates suggested by the father provided the nominated supervising agency is available at that time.
(b) That the mother give the father and nominated supervising agency no less than 14 days written notice of the time appointed pursuant to Order 4(a).
(c) Such time to be supervised by whichever of the following agencies that supervise children’s time with a parent the father nominates:
(i) Phoenix Rising or
(ii) another private agency, or
(iii) Sydney Contact Centre or
(iv) (omitted) Contact Centre
(d) If the father’s time is supervised by Phoenix Rising or another private agency it is to take place at a venue acceptable to that agency, nominated by the father, and being in the Sydney metropolitan area or (omitted) area.
(e) All costs of supervision are to be paid by the father.
(f) The children are to be delivered to and collected from the place where they are to spend time with the father by the mother or her nominee.
(5) That each quarter the father shall give the mother a list of the non school days and times that he is able to spend time with the children.
(6) The parties are to forthwith do all things necessary to complete any intake procedures required by the nominated agency or agencies.
(7) In the event that Z wants to spend time and communicate with the father, the mother shall facilitate her participation in her brothers’ time with the father which is provided for in these orders.
(8) That the father’s time with the children pursuant to Order 4 above is subject to the following restraints:
(a) That he does not denigrate the mother or permit any third party to do so within the presence or hearing of the children.
(b) That he does not physically discipline the children or permit any third party to do so.
(c) That he does not discuss the proceedings or any issues arising out of the proceedings with the children or permit any third party to do so.
(d) That he does not show the children copies of any court documents filed or prepared in respect of these proceedings or any related proceedings.
(9) That the mother is restrained from the following:
(a) denigrating the father or permitting any third party to do so within the presence or hearing of the children;
(b) physically disciplining the children or permitting any third party to do so;
(c) discussing the proceedings or any issues arising out of the proceedings with the children or permitting any third party to do so; and
(d) showing the children copies of any court documents filed or prepared in respect of these proceedings or any related proceedings.
(10) Both parties are restrained from having any of the children interviewed by the NSW Police, JIRT, or the Department of Family and Community Services (or as that agency is named from time to time), unless directed to do so in writing by that agency or by court order.
(11) That in the event that the children express a wish to the mother to speak with the father, the mother shall facilitate that telephone contact by either herself or the child telephoning the father’s mobile telephone.
(12) The mother is permitted to monitor the children’s telephone calls and in the event that the father attempts to discuss with the children any issues relating to the parenting proceedings, (including the allegations of violence made against the mother’s husband), the mother may terminate the call.
(13) That twice a year, the mother will forward the father copies of the children’s school reports and recent photographs.
(14) That the father is at liberty to send letters and gifts to the children.
(15) Other than to spend time with or communicate with the children as provided for in these orders, the father is restrained from contacting or approaching them, where they live, play sport or attend school.
(16) Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
(17) The father’s application filed 11 April 2011 (as amended) and the mother’s response filed 16 May 2011 (as amended) are otherwise dismissed.”
The father filed an appeal against her Honour’s decision on 16 July 2013 (see file EA 96/2013), however it would appear that the appeal was abandoned pursuant to rule 22.21 of the Family Law Rules 2004 as the father did not file and serve the relevant appeal books by 10 March 2014.
There is evidence before the Court that mother requested the father to sign the children’s passport applications earlier this year and the father acknowledged that he knew of the request and the proposed travel to (country omitted) by March this year. Indeed the parties agreed that Z attended a supervised visit with her father in late March this year and asked the father to sign her passport application. The father’s refusal to sign the application allegedly upset the child enough that she may have used offensive language in the presence of those present. The mother denies influencing Z’s decision to attend with the application and confront the father. Whatever the truth be, this incident says much about the poor relationship that exists between the parties.
The mother asserts that following this incident she was required to commence these proceedings. There is evidence that she caused a third party to post the court documents to the husband’s address for service (the father acknowledging that the mother does not know his residential address and that documents are forwarded to each other by post). The evidence would also suggest that the relevant Court documents were available for collection by the father from his post box on and from 24 April 2014, although the father asserts he did not collect them until the beginning of the week commencing 5 May 2014.
As stated, although I reserved the Court’s decision in respect of the urgent travel application, I was satisfied that the children’s best interests would be served by allowing the mother to obtain passports for the children without obtaining the father’s consent in order to facilitate any future overseas travel. The orders made on 15 May last were as follows:
THE COURT ORDERS THAT:
1. All extant applications be adjourned to this Court on a date to be fixed for judgment hearing.
2. The Respondent’s application for an adjournment of the hearing of the Applicant’s Initiating Application be refused.
3. The Applicant is authorised and permitted to apply for and receive an Australian passport for the following children:
a. X born (omitted);
b. Y born (omitted); and
c. Z born (omitted) (collectively “the children”),
without first obtaining the consent of the Respondent.
4. The Applicant be granted leave to file an affidavit in Court.
THE COURT ORDERS PENDING FURTHER ORDER THAT:
5. Each party, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the taking or sending of the children from the Commonwealth of Australia, noting that this order does not prohibit the taking or sending of the children from Australia to a place outside Australia if it is done with the consent in writing of each party (authenticated as prescribed in accordance with r.12 of the Family Law Regulations 1984).
AND THE COURT NOTES THAT:
A. The Applicant filed an Initiating Application on 4 April 2014 (“the travel application”) which was listed by a Registrar as an urgent matter in the duty list today.
B. Judgment is reserved on the Orders sought by the Applicant in the travel application.
C. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (“the Act”), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
Issues
As stated, the parties are in disagreement about the following:
·whether the mother should be permitted to remove the children from Australia in order for them to go on a three week overseas holiday to (country omitted) to coincide with the forthcoming school term holidays (ie. in approximately one month’s time);
·whether the interim restraint imposed upon the parties preventing the children from being removed from Australia should be discharged;
·in the event the that the interim restraint is not discharged, whether the children should be placed on the Airport Watch List; and
·whether the father should pay the mother’s costs associated with these proceedings.
Evidence and Submissions
Each of the parties’ presented oral submissions on 15 May 2014. The transcript for the duty list hearing that was conducted that day will of course reflect those reasons. I will refer to those submissions where relevant during the course of these reasons.
As to documentation, the mother relies on the following:
·Initiating Application filed on 4 April 2014;
·Mother’s affidavit sworn and filed on 4 April 2014; and
·Affidavit of Service of Mr W sworn on 23 April and filed on 15 May 2014.
In addition the mother tendered a ‘Track your Item’ document from Australia Post dated 24 April 2014 (Exhibit “AM1”).
The father has not filed a Response or affidavit in reply. The Court did, however, allow him to respond to the wife’s evidence and assertions during the course of his oral submissions.
Law and discussion
All parenting proceedings of course are governed by the provision of Part VII of the Act.
Parenting orders are defined in s.64B of the Act and deal with where a child is to live and, relevant to this dispute, the time that a child spends with another person. Parenting orders also deal with the allocation of parental responsibility.
Section 60CA of the Act makes it clear that for the purposes of making a parenting order the Court must regard the best interests of the child as the paramount consideration. What is considered to be in the best interests of the child (or children in this case) in parenting disputes necessarily depends on the particular circumstances in each case. In each case different circumstances require different resolutions. That having been said, to determine the best interests of the children (or the child in this case), the Court must consider the primary and secondary considerations under section 60CC of the Act. I will consider this provision later in these reasons.
Before doing so I will consider the relevant law with respect to the issue of a passport without the consent of one parent and then consider issues specifically relevant to the authorisation or prevention of authorised travel.
Obtaining a passport without a parent’s consent
Under section 11 of the Australian Passports Act 2005 (“Passports Act”), the consent of a parent with parental responsibility for a child is required for a passport to issue for that child unless Ministerial permission is obtained or a Court has permitted the child to travel overseas. In this case, the mother has sole parental responsibility for the children and assumed, when she applied for passports to be issued, that this entitled her to do so without having to seek the father’s consent. However, the definition of “parental responsibility” in s.11(5) of the Passports Act gives that term a wider meaning than under the Act, to include an order that a person spend time with a child. In other words, as there is an order that allows the children to spend supervised time with the father, the consent of both parties is required.
In this case, the mother sought judicial consent. She also indicated that a request for Ministerial permission had also been made.
Unauthorised removal of children from Australia
Even if the mother held passports for the children, she would not be able to take the children out of Australia without the father’s consent if an order existed that the children spend time with him, unless a Court had ordered otherwise. This is because there are provisions in the Act that prevent a parent from unilaterally removing a child from Australia when a parenting order is in force, or when there are, parenting proceedings pending.
Section 65Y(1) of the Act provides that, subject to subsection (2), if there are parenting orders as defined in s.65X is in force,[1] a person who was a party to the proceedings in which an order was made, or a person who was acting on behalf of, or at the request of such party, must not take or send a child from Australia. Section 65Y(2) of the Act sets out two exceptions: firstly, where it is done with the consent of the other parent and secondly, where it is done in accordance with a Court order. The parent’s consent must be authenticated as prescribed under the Family Law Regulations 1984. For completeness, I note that s.65Z of the Act makes the same provision where there are pending proceedings for such a parenting order. In each case, that is ss.65Y and 65Z, the penalty for any breach is a maximum of three years prison.
[1] Pursuant to s.65X of the Act, the relevant parenting orders are those that provide for a child to live with or spend time with or communicate with a person or provide that the person has parental responsibility for the child.
Injunctions to prevent children leaving Australia
There is also power under the Act, in appropriate circumstances, to make an order restricting a parent or other person from removing a child from Australia, whether such order be considered as an injunction or a parenting order. I note that such a restraint was made by the Court on an interim basis on 15 May last.
If the restraining order is a parenting order, it would be governed by the principle that the child’s best interests must be regarded as the paramount consideration and the associate provisions – in other words I am referring to ss.60CA, 60CC, and 60B.
If the restraining order is treated as an injunction under s.68B of the Act, the paramountcy principle will not apply, but the interests of the child will be an important factor in the exercise of the Court’s discretion.
Airport Watch List
The Australian Federal Police enforce orders made by this Court and the Family Court, as well as Local Courts. The alerts are placed on a system known as the Airport Watch List maintained by the Australian Federal Police. The Airport Watch List, which is otherwise known as the PACE Alert System, or the PASS Alert System, is based on customs control. It is commonly activated at airports, although it operates at all ports, whether it is a customs process, including shipping ports. Data is electronically entered in relation to individuals who are the subject of the system, and an alert is activated by reference to their name when their passports are electronically scanned at customs.
When a child’s name is placed on the watch list, it will remain on the list until further order of the Court, or until the child obtains the age listed in the relevant order, whichever occurs first. It is important, when making an order, to consider whether to provide for an order to cease after a particular period. I note that I refused the father’s oral request for an Airport Watch List when the matter was before me on 15 May last for the reasons I gave that day. I will reconsider that issue as part of this decision.
Factors relevant to authorising or refusing overseas travel
The Court is assisted by relevant case law.
In Kuebler and Kuebler (1978) FLC 90-434, the Full Court of the Family Court (per Ashgun SJ, Gun and Yewell JJ), set out the following factors which should be considered in applications to temporarily remove a child or children from Australia:
·the length of the proposed stay out of the jurisdiction;
·the bona fides of the application;
·the effect on the child of any depravation of access;
·any threats to the welfare of the child in the circumstances of the proposed environment; and
·the degree of satisfaction in which the Court based its assessment of the parties that are a promise of a return to the jurisdiction would be honoured.
In the relatively more recent case of Line & Line (1996) 21 Fam LR 259; (1997) FLC 92-729, the Full Court (per Murray, Lindenmeyer, and Kay JJ) confirmed that fixing an appropriate level of security for a child’s return was a matter of discretion for the trial judge. In the exercise of that discretion, the Court should have regard to the following matters:[2]
·the two-fold purpose of the security, namely (i) to provide a sum which will realistically entice the person, removing the child to return; and (ii) to provide a sum to adequately provision the party left in Australia to take action and proceedings in Australia and overseas to obtain the return of the child if required;
·the degree of risk that the departing parent would choose not to return;
·whether the country to which the parent will travel with the child is a signatory to the Convention on the Civil Aspects of International Child Abduction 1980 (the Hague Convention); and
·the financial circumstances of each of the parties, and the relative hardship imposed on the departing parent by fixing security at a particular level as compared with the hardship to a non-departing parent, if security were fixed at a lower level. Hardship to the child flowing from these factors will also be relevant.
[2] Line & Line (1996) 21 Fam LR 259, at 263-264.
Although the guidance from these cases remains useful, they should now be read subject to the amendments made to the Act in 2006 and 2011 (that provide more detailed criteria as to what would be in the children’s best interests). In other words, they have to be read in light of more recent cases, such as Goode & Goode (2006) FLC 93-286.
The person proposing to leave the jurisdiction may be ordered to make a cash payment into a solicitors trust account, or to provide other security for his or her return as a way of addressing any risks of non-return.
I will now consider the relevant statutory considerations in the Act in light of the submissions and available evidence.
Primary considerations: s.60CC(2)
Section 60CC(2)(a) requires the Court to consider the benefit of the children having a meaningful relationship with both of the child’s parents. That said, the Court must also consider s.60CC(2)(b) of the Act - the need to protect the child from physical or psychological harm and being subjected to or exposed to abuse, neglect or family violence.
In this case, as stated, the father is concerned that the proposed holiday will impact upon his relationship with the children because, he asserts, he will miss out on one supervised visit planned to take place on 28 June 2014. This is disputed by the mother. She argues that this was the only date that the father has indicated his availability for time to be spent during the month of June. She would propose that another date be utilised and submitted that paragraph 4(a) of the final orders, made 13 June 2014, ultimately permit her to choose the relevant date.
If there was evidence that the mother proposed to remove the children from Australia for a period exceeding one month then the father’s concerns may be more justified. In this case, however, the proposed trip is for three weeks only. Consequently, the Court is satisfied that the proposed holiday, in terms of length, would not impact upon the children spending one supervised period each month with the father. In order for the trip to occur, of course, the children will need their own passports.
I now make some comments about the additional considerations.
Additional considerations: s.60CC(3)
In relation to s.60CC(3)(a), there is no independent evidence as to the children’s views. That said, the mother’s assertion that the children are excited and looking forward to the proposed holiday to (country omitted) is persuasive.
In relation to s.60CC(3)(b) (the nature of the relationship between the children and each of the child’s parents), we have, not uncommonly in these types of disputes, different stories being presented to the Court. As stated, there are recent final orders in place that provide for the children to live with the mother and spend supervised time with the father. While the parties’ relationship remains poor, there is no evidence before the Court that the children’s relationship with either parent will be harmed by permitting the children to travel for the proposed holiday. Refusal, however, may place a further strain on the children’s relationship with the father, in particular Z’s relationship with the father.
As to s.60CC(3)(c) (the extent to which each parent has provided an opportunity to participate in decision-making), the evidence would suggest that the mother sought to obtain the father’s consent for both the issue of the passports, and for the children to go on the proposed holiday to (country omitted), and that his consent was not forthcoming. I note again the there is a final order in place providing for the mother to have sole parental responsibility for the children.
As to s.60CC(2)(ca) (the extent to which each of the children’s parents have fulfilled their obligations to maintain the child), I refer to previous comments.
As to s.60CC(3)(d) (likely effect of any changes), the Court is satisfied that the proposed three week holiday is not likely to impact upon the children’s relationship with the father.
As to s.60CC(3)(e) (practical difficulty issues), the Court is satisfied there are no obvious issues of concern.
As to s.60CC(3)(f) (capacity of each of the child’s parents), I note the mother’s assertion that because she only receives minimal child support from the father, she and her husband provide the bulk of the financial support for the children. I also note the mother’s assertion that the maternal grandparents have provided some financial assistance to enable the proposed (country omitted) holiday to take place.
In respect of s.60CC(3)(g) (maturity, sex, lifestyle and background), there are no specific matters here to assist the Court that have not already been identified.
In respect of s.60CC(3)(h) (Aboriginal child or a Torres Strait Islander child), I am not aware that any of the children identify as Aboriginal or Torres Strait Islander.
In relation to s.60CC(3)(i) (attitude issues), I simply reiterate my earlier comments.
In respect of s.60CC(3)(j) (family violence) and s.60CC(3)(k) (family violence orders), there is no evidence before the Court of any recent allegations of family violence made by one party against the other. Nor was the Court made aware of there being any current apprehended violence order in place that affects the parties and/or the children. The father did make some assertions that he held evidence that the children’s welfare was at risk in being in the care of their step-father of the maternal grandmother. As stated, the father further indicated his intentions to file a new substantive parenting application that he was confident would survive any ‘Rice & Asplund’[3] challenge.
[3] See In the Marriage of Rice & Asplund (1978) 6 Fam LR 570 at 572; (1979) FLC 90-725 at 78,905 (per Evatt CJ).
As to s.60CC(3)(l) (whether it would be preferable to make an order, that would be least likely to lead to the institution of further proceedings), this is not applicable as the orders sought are specific and there are final parenting orders in force. The father did assert that he proposed to file a further Initiating Application in the very near future that he was confident would result in the children’s residence being changed.
As to s.60CC(3)(m) (any other fact or circumstance), I note the father’s concern that (country omitted) is not a signatory to the relevant Hague Convention and that (country omitted) may be an unsafe jurisdiction. That said, (country omitted) is a popular and affordable holiday destination for Australian families and Australians in general. The Australian Government’s ‘Smart Traveller’ website advises that (country omitted) is a level 2 (out of 4) risk (“exercise a high degree of caution”) and only lists (country omitted), (country omitted) and the (country omitted) provinces as areas in (country omitted) where any travel should be reconsidered. I note that this was discussed with the parties during the course of their submissions.
I now make the following comments in light of the relevant case law, and in particular the decisions of Kuebler and Kuebler (1978) FLC 90-434 and Line & Line (1996) 21 Fam LR 259; (1997) FLC 92-979:
·the length of the proposed stay out of the jurisdiction – as stated the holiday is just for three weeks and will involved a direct flight to and from (country omitted);
·the bona fides of the application – I accept the mother’s evidence that the trip is recreational and short-term and that she has secured the necessary permissions from the children’s schools to allow the trip to include the last week of the second school term ;
·the effect on the child on any depravation of access – I have previously commented on this aspect;
·any threats to the welfare of the child in the circumstances of the proposed environment – I note the mother’s assertion that the children will be staying in recognised and secure hotel accommodation;
·the degree of satisfaction in which the Court based its assessment of the parties that are a promise of a return to the jurisdiction would be honoured – there is no evidence that the mother would be a flight risk; neither she nor the children have any connection to any other country apart from Australia and there is no financial reason to suggest that she would not return to Australia where she has employment and home ownership;
·whether financial security is appropriate – the Court is not satisfied that there are circumstances that would require the need for any financial security to be lodged;
·relevance of (country omitted) not being a Hague country – I have already commented on this issue; and
·hardship issues – as there is evidence that the proposed holiday has been paid for, including the use of frequent flyer points, there may be financial hardship imposed upon the mother if the holiday did not proceed.
Costs
As stated, the mother also seeks an order that the father pay her costs associated with these proceedings. As this issue was not the subject of any specific submissions the Court will only consider the merits of whether such an order should be made. If the Court decides there is some merit in hearing from the parties further about this issue then a date will be fixed for that to occur.
Pursuant to reg.21.02 of the Rules, this Court has the power to make an order for costs at any stage in a proceeding.
In family law matters, the Court also needs to consider s.117(1) of the Act which states the principle that each party shall pay their own costs. The exception to that rule is contained in s.117(2), which relates to circumstances where the Court finds there is justification for departing from the principle. This exception is subject to the matters referred to in s.117(2A) of the Act.
Section 117(2A) of the FLA states:
“In considering what order, if any, should be made under subsection (2), the Court will have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings, including, without limiting the generality of the foregoing, the conduct of the parties in relation to the pleadings, particulars, discovery, inspection, directions to answer questions, admission of the facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by a failure of a party to the proceedings to comply with the previous orders of the Court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) any such other matters as the Court considers relevant.”
In this matter, while there are some arguments that may support a claim for costs, I note that the mother commenced these proceedings as a self-represented litigant and represented herself at the duty list hearing.
Given the circumstances I am not inclined to make any costs order. It was unfortunate that these present issues were not raised or considered in the recently concluded parenting proceedings. However, in the event that further parenting proceedings are indeed filed by the father, as he has indicated he may seek to initiate, then the mother can have liberty to re-agitate the issue of the costs of these proceedings.
Conclusion
Having considered the issue in dispute in light of the relevant principles and the available evidence, the Court is persuaded to make the orders sought by the mother with some modification.
The mother will be permitted to remove the children from the Commonwealth of Australia between the dates of 23 June 2014 to 13 July 2014. This outcome will be conditional upon the mother having the children cleared by their general practitioner as being fit to undertake travel by air to and from (country omitted) and obtaining appropriate travel insurance for herself and the children. The mother will also be required to ensure that the children reside overnight in hotel accommodation and that they do not travel to the areas of (country omitted), (country omitted) and the (country omitted) provinces.
The Court is satisfied that the interim restraint preventing either party from removing the children from Australia should be discharged. Consequently, there remains no need to place the children’s names on the Airport Watchlist.
As stated, there will be no order as to costs but the mother can have liberty to re-agitate the issue of the costs of these proceedings in any further proceedings between the parties.
There will be Orders of the Court to reflect these reasons.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Monahan
Associate:
Date: 21 May 2014
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