McDuff and Seaward
[2016] FamCA 416
•11 May 2016
FAMILY COURT OF AUSTRALIA
| MCDUFF & SEAWARD | [2016] FamCA 416 |
| FAMILY LAW – CHILDREN – travel overseas – where the father opposes the mother’s application to travel with the children overseas – where the mother is permitted to travel to Asia with the children for a specified period of time – where the mother must ensure the children have appropriate hotel accommodation and do not travel to certain areas within Asia. |
| Family Law Act 1975 (Cth) s 60CC |
| Kuebler & Kuebler (1978) FLC 90-434 Line & Line (1997) FLC 92-729 McDuff & Seaward [2014] FCCA 1012 Seaward & McDuff [2013] FamCA 485 |
| APPLICANT: | Ms McDuff |
| RESPONDENT: | Mr Seaward |
| FILE NUMBER: | SYC | 2177 | of | 2011 |
| DATE DELIVERED: | 11 May 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 11 May 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Litigant in person |
| SOLICITOR FOR THE APPLICANT: |
| COUNSEL FOR THE RESPONDENT: | Litigant in person |
| SOLICITOR FOR THE RESPONDENT: |
Orders
That the applicant mother be permitted to travel to Asia, with J born … 2004, Z born … 2005 and B born … 1998 for the period between Friday, 17 June 2016 to Sunday, 10 July 2016 inclusive.
For the duration of the holiday period, the mother shall ensure that:
(a) the children reside overnight in appropriate hotel accommodation;
(b)the children not be permitted to travel to the areas of Asia, provinces or any location which is subject to a “Reconsider your need to travel” or higher warning by the Department of Foreign Affairs and Trade.
Noting the parties are to attend upon a family assessment on 24 May 2016, it is further ordered that the proceedings be listed for mention by the list registrar on a date to be fixed but, in any event, not before 17 July 2016.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mc Duff & Seaward has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 2177 of 2011
| Ms McDuff |
Applicant
And
| Mr Seaward |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The mother, by application filed at 3 May 2016, seeks orders that she be permitted to travel to Asia with the three children, J born in 2004, Z born in 2005 and B born in 1998.
She seeks that the permission to travel to Asia is for the limited period from Friday, 17 June 2016 to Sunday, 10 July 2016 and, in addition, although not immediately apparent from the application and affidavit, she seeks further orders that place condition on the children’s travel, namely that the children reside overnight in hotel accommodation and that there are certain areas within Asia that the children are not to travel to.
The reason for the conditions arises from an earlier hearing in respect of a similar application heard by Judge Monahan on 15 May 2014, with judgment and orders made on 21 May 2014.
I indicate at the commencement of these reasons that I have had regard to his Honour’s judgment bearing the citation of McDuff & Seaward [2014] FCCA 1012. I have also had regard to the decision of Ryan J delivered on 19 June 2013, wherein her Honour made parenting orders in respect of the children that essentially provided for the mother to have sole parental responsibility for the children, that they live with her and that they spend supervised time with the father for a period of three hours each calendar month at times as are able to be agreed and/or nominated. Her Honour’s order is more extensive than the broad summary given some of the submissions made by the father should have to be seen against orders that, at first instance, would appear to have no connection to the current application. The current application must be seen as having a narrow compass.
It is the mother’s position that the application is limited and is not in any way different to the issues that were heard and determined by Judge Monahan in May 2014. That position of the mother must be seen in stark contrast to the presentation by the father, where he considers that, whilst his Honour was wrong in the orders made on 15 May 2014, nonetheless, there have been significant and material changes to the circumstances since his Honour’s consideration which requires this application to be seen in a different light.
Whilst I do not consider, given my remarks made earlier this morning, that there is now any contention in relation to the notice that the father was given in relation to the mother’s application for the children to travel to Asia, much has been raised in respect of that history and I think it is incumbent upon me to at least explore the genesis of the proposed trip.
The mother annexes and relies upon correspondence attached to her affidavit of 29 April 2016. I do not propose to go through it in detail but, in summary, I have regard to the correspondence being annexures B and C to the affidavit. The first letter from the mother’s solicitors to the father is dated 18 February 2016 and raises the desire of the mother to travel to Asia with the children indicating that tickets have been purchased for the period as requested. The proposal as set out in that correspondence is, again, not different to the application. There was further follow-up in correspondence of 29 February 2016 and by annexure D, being a letter to the father dated 3 March 2016, the mother’s solicitors respond to concerns raised by the father in his correspondence of 29 February 2016 in respect of the proposed travel. It is also an issue raised by the father in his affidavit filed 21 March 2016 where at paragraph 22 the father says:
[J] then went on to say that he was going to [Asia] and he knew his father was doing anything he could to complicate the situation and prevent them from going. [J] said, “[Mr Seaward] took everything to court.” This is a direct and serious breach of order 9(c). The way the breach was orchestrated is in serious breach of the anti-denigration order in 9(a).
Attached to the father’s affidavit at annexure 1(a) is a report from a Ms I from the P Contact Agency supervisory centre, who was the supervisor for the father’s time with the children on 27 February 2016. Consistent with the father’s understanding of the matter and correspondence that has been provided, Ms I records that J went on to say he was going to Asia with his family and he knew his father was doing anything he could to complicate the situation and prevent them from going. J said, “[Mr Seaward] took everything to court.”
The references to Asia, and, in particular, what appears to be the children’s understanding about the holiday or the travel, has two aspects to it. The first is the matter the father raises which is the extent to which the children have been given an expectation about their travelling to Asia. The mother was premature in advising the children of her planned holiday until their agreement or Court orders. The father, however, would want to place a more sinister gloss on the statements made by the children, but in particular J, which is that in some way the mother has attempted to promote a further breakdown or an exacerbation of what might already be considered the fragility of a relationship between the father and the boys by building them up in respect of an expectation of travel to Asia but then tempering that expectation by indicating that it is conditional upon the father’s consent and that it is not expected his consent will be easily forthcoming. I am not in a position at this stage to get to the bottom of that. It may be an important consideration. I suspect its importance is not so much in terms of a trip to Asia, but its importance is the fate of the ongoing orders now that the father has filed an initiating application and the mother has responded to it.
The other factor, which has a level of complexity in terms of the manner in which it is intermingled with the proceedings, is that, as part of the proceedings, the parties, and I assume the children or at least the boys, are to attend upon a family consultant in May 2016 with a view to better understanding circumstances in which the children find themselves, their wishes and perceptions in respect of the relationship with their father and their mother and, I suppose, pointedly, the aspect of the extent to which the boys would wish to continue to spend time with their father pursuant to the order. I say that because it is now not controversial that the boys are not spending time with their father pursuant to the order. The issue is why they’re not doing so as opposed to an acknowledgment that it is not happening. For her part, the mother has said in her affidavit that the boys do not wish to do so and they find it difficult and distressing. For his part, the father says that any disruption to the relationship, as minimal as it may be in respect of the current orders is the mother’s fault.
There is, however, a connection and to some extent at least one of the concerns that I have is that it is important for the Court to gain a clear an assessment of the future parenting arrangements in respect of the children and that the focus of the family consultant is not distracted by matters that might be considered peripheral. To some extent this issue in respect of the travel to Asia is peripheral, save and except for the proper concerns that the father has in relation to matters of safety. A summary of how this issue has the potential to create greater harm as far as the children’s perceptions of their parents are concerned can be gleaned from Ryan J’s wise words at paragraph 329 of her judgment:-
The impossibly conflicted relationship between the parties and the effect this has and is likely to continue to have on the children stands in the way of anything other than limited supervised time with the boys and the father and [B], should she wish to accompany them. Only supervised time provides the children with the necessary level of protection from pressure from the father to align with him and ongoing antagonism towards the mother, her husband and the children’s lives with them. Supervision also moderates the risk that the father might speak to the boys in the accusatory manner he used in his communications with [B]. It weighs heavily that this puts their relationship with their father and paternal relatives at risk in the long term and deprives the father and the paternal relatives of the opportunity for a meaningful involvement in the children’s lives. However, for this family the sad reality is that the weight of the evidence demonstrates that any other outcome jeopardises not only the children’s relationship with the mother but their stability and emotional and psychological wellbeing.
The father raises a number of issues in opposition to the travel planned by the mother. Some of them have a clear target and focus; some of them are more oblique. At the commencement of the father’s submissions, I understood that his argument was not that there was a good reason generally for the mother not to take the children out of the Commonwealth of Australia but that it was the place of intended travel that created the difficulty and should speak against the application. In summary, if the mother’s intention had been to travel with the children overseas, a Hague Convention country as opposed to a non-Hague Convention country, and then to a country where there was little or no threat of terrorism or there were no safety issues in respect of the children, the initial impression created by the father’s submissions was that he would have no opposition or, at least, he would be unlikely to have any significant opposition. Indeed, the correspondence that he forwarded in response to the mother’s solicitors’ letters suggest that it was the place of travel rather than the fact of travel overseas that was the problem.
On further explanation from the father, the matter is not so simply summarised. In a general sense he says that the mother should not be permitted to take the children overseas irrespective of the destination because of the following factors:
(1)that she is in breach of the order in that the children have not spent time with the father since February 2016;
(2)because the mother’s circumstances have changed and she now has apparently separated from her partner, Mr McDuff, and that the uncertainty in her life in some way changes the landscape such that travel should not be permitted;
(3)because there appears to be escalating hostility between the parties, in particular arising out of an unpleasant and an unfortunate occurrence wherein the father and his partner happened to come across the mother’s new residence. Police were called and the father considers that this can be interpreted as another breach of the order by implication – namely, the involvement of police;
(4)that, in relation to the mother’s new premises, the father considers that the mother should have told him of the address of those new premises to ensure that there was no uncertainty as to his ability to forward correspondence – letters, cards, gifts – to the children.
Individually, none of those issues would seem to have particular focus in respect of this application but the father’s general submission is that, when all of those matters are looked at, it suggests a heightened level of instability in the mother’s environment and that this may well suggest to a Court that the proposed trip to Asia is not intended by the mother to be merely a holiday but is intended by her to be a ruse or a subterfuge wherein she intends to flee the jurisdiction with the children. The father’s further submission is that the mother is concerned as to the likely outcome of the upcoming family consultant’s report and he opines that, when that report makes what he considers to be an inevitable suggestion or recommendation that the current orders are now no longer in the interests of the children and that the children should live with him either substantially or primarily, or perhaps equally, that that concern of such an outcome would promote in the mother the intention to flee the jurisdiction.
With respect to the father, I do not consider that those submissions have any relevance whatsoever to the current application. Proceedings were commenced of recent date but it could not be said by the father that he has not been aware from a very early time – certainly as and from 28 February 2016, namely, the correspondence that he received – of the mother’s intention or desire to travel with the children to Asia in circumstances and conditions exactly the same as set out in her application. There is no suggestion that the mother has family in Asia or that she would have the financial resource to be able to reside there; indeed, however it came to pass, the father knows where the mother and the children reside.
It is true that there is little apparent financial assistance emanating from the father by way of any child support assessment. By implication, that would seem to suggest that the children’s financial arrangements are cared for entirely or provided for entirely by the mother. The mother says that she is employed and has been so employed for some 25 years in the area of social services.
I do not consider that there is anything before the Court, either in terms of the early history of this matter or the recent affidavit material, which would suggest that the mother’s underlying intention is to flee the jurisdiction and remove the children in a way that would defeat what the father says is inevitable success of his current proceedings. All of that, of course, ignores the very real issues as to why the child B who is nearly 18 years of age, would want to live in a foreign country. Again, whilst the father did not agree and does not accept that the mother should have been permitted to take the children to Asia in respect of the proceedings in 2014, nonetheless, the history is that the mother went, returned with the children and there were no issues relating to compliance. I do not consider that there were any matters in respect of what I might describe as the peripheral submissions of the father which would, in and of themselves, speak against the application, but of course that is not the end of the matter.
The parties rely upon a number of documents. I have indicated that I have regard to the reasons for judgment of Ryan J and of Judge Monahan. Obviously, I have had regard to the initiating application of the father filed 3 August 2015; the affidavit of the father filed 21 March 2016, which contains, importantly, the observational reports of the P Contact Agency organisation; and also I have had regard to a bundle of documents provided – tendered by the father today, which are various, which include documents that are public documents in the sense of information from the Australian – from the Department of Foreign Affairs and Trade website – namely, smartraveller.gov.au in respect of matters relating to safety in Asia, some newspaper articles and clippings and the father’s letter of response dated 29 February 2016. In relation to the mother, I’ve had regard to her response filed 23 February 2016, her affidavit in support of 2 February 2016, her urgent application of 3 May 2016 and the further affidavit in support.
Whilst I talk of this application as being an application of narrow compass, it is nonetheless an application that has to be dealt with pursuant to Part VII of the Act. As the parties to these proceedings, unfortunately, are aware, I say “unfortunately” because of their long and complex litigation history in this Court, this is a parenting order and has to be considered under the parenting provisions of the Act. It is not made in a vacuum. Whilst I have a discretion, my judicial determination and the exercise of that discretion is confined and bounded by the provisions of Part VII, but in particular s 60CC, which determines what is in a child’s best interests. There are two sets of considerations, the primary consideration and the additional considerations. Obviously, in an application that has broader implications – namely, an application that would see a variation in respect of the time that a child or children spends with his or her parents – more of the primary and additional considerations are relevant and have to be given focus. I do not propose to go through the considerations individually. It is now no longer necessary. It is now sufficient that the parties understand that I have had regard to the primary considerations and the additional considerations.
I do not consider that the current application has a focus in terms of matters of meaningful relationship. This is a limited topic, and unless I accede to the father’s submission that what is behind all of this is an intention by the mother to flee the jurisdiction with the children, thereby fundamentally affecting the relationship that the children either have or might have with the father, then I do not consider that there are matters in respect of primary considerations which need consideration. As indicated, I reject entirely that there is an ulterior and dark motive to the mother’s application as opposed to that which would seem to be the more commonsense position, which is that the family have travelled to Asia on an earlier occasion and that, as a result of the mother receiving some money from her mother, she was able to again consider a family holiday. I do not put the matter any more highly than that.
I am satisfied that the children have expressed a wish that they would want to go to Asia. I am entitled to draw that conclusion from what which is reported by the father and that which appears in the observational reports from the P Contact Agency. It matters not that there is the possibility that the father is right and that in some way this has been set up by the mother. Whilst there is no evidence of that, obviously at this stage I cannot reject that submission out of hand, but it is clear that, all other things being equal, there would be no reason to suggest that the boys do not other than wish to go to Asia.
It seems to me, other than issues of safety, there are no other issues in respect of s 60CC that would impact. The mother says even if the boys were spending time with the father pursuant to the order the time that she seeks is designed to not interfere with the order. It may be that the boys will change their mind. It may be that the advent of the family report will cause each of the parties to reassess the position and to renew their efforts to seek either compliance with the order or a different way forward that would see these parties being relieved from the ongoing litigation, but I do not consider that the mother’s application should be seen against any disruption of the father’s order. It may be that the father is right and there is non-compliance. If there is non-compliance it is not in order to facilitate the proposed trip. That is for another judicial officer to determine at another time.
There are no issues of family violence. There are no issues in respect of the practicality or the needs of the children, issues relating to the expense or otherwise. I am satisfied from the information provided by the mother that the children’s tickets are paid for both to Asia and return and consistent with the previous order made by Judge Monahan, the mother has heeded the orders and she seeks to mirror them in terms of accommodation.
I have been assisted by reviewing the authorities. They are well known and it is not a coincidence that the decisions his Honour referred being the decisions of Kuebler & Kuebler (1978) FLC 90-434 and Line & Line (1997) FLC 92-729 are on point and often quoted in applications of this sort. In Kuebler (supra) the Full Court set out a number of the factors that were relevant and they include the length of the stay, the genuineness of the application, the effect on the child of any interference or interruption with orders for time between the child or children and the father, and the extent to which the Court can be satisfied that the children be returned to the jurisdiction and any threat to the welfare of the child or children in terms of the proposed destination of travel or environment.
In Line (supra), the Court considered that it was a relevant factor as to whether a parent is to travel with a child to a country that is, or indeed is not, a signatory to the Convention on the Civil Aspects of International Child Abduction 1980, namely, the “Hague Convention”. Those matters are all relevant, but again they must be brought within the context of the provisions of s 60CC, which really now set out the extent of the parameters relevant to the determination of such an application.
It is clearly an issue that the intended country in Asia is not a Hague Convention country. It is, however, a well travelled destination and in this case it has been a destination travelled to by the mother and the children. The mother returned the children following the last trip. Without that history, it may be that that very issue alone – namely, that it is not a Hague Convention country – would speak against the order being made, save and except where other circumstances might apply, such as a security bond or other methods of ensuring the return of the children. In this case I do not consider those issues of security in terms of the mother returning the children to the jurisdiction are as important as they may be in another case.
The essence of the opposition by the father is not realistically that the mother is a flight risk or that I should impute an ulterior and dark motive to the mother’s application by the twists and turns that the father says have happened to the mother following the breakdown of her relationship with Mr McDuff and other indicators that the father would wish me to bring to account. The issue for the father is he says it is simply unsafe for the children to go to Asia. The mother’s argument is straightforward. She says that the DFAT warning that exists today in respect of Asia is indeed no different to that which she says existed when Judge Monahan made the earlier orders. She says that then and now the DFAT was a level 2 warning – namely, to exercise a high level of caution except areas which had a higher level, and resulted in an order imposing a travel restriction in respect of those potential destinations.
The documents that the father has presented and which will form “exhibit 1” in this application sets out the full transcript of the DFAT advice in respect of travel to Asia. Under the heading of “Advice Levels”, in respect of Asia overall, it was to exercise a high degree of caution. The mother and the father both agree with that advice level and it is common ground that it was the same advice level that was in place in 2014. If that were the only issue, there would be no contention. The contention appears to arise from the advice dated 25 February 2016:-
Terrorists may be in the advanced stages of preparing attacks in [Asia]. The overall level of advice has not changed. We advise you to exercise a high degree of caution in …, including [Asia].
There is a summary of what has happened and, in particular, there is a focus on what terrorist attacks have actually occurred. In particular, the following is recorded:-
You should exercise particular caution around locations that have a low level of protective security in places known to be possible terrorist targets. Terrorists have previously targeted nightclubs, bars, cafés, restaurants, international hotels, airports and places of worship in … and elsewhere in [Asia].
There is again further history provided in the summary that predates the date of this advice, being 25 February 2016.
It cannot be said, however, that the warning is at the level of reconsidering the need to travel or the highest warning, which is, “Do not travel.” It is a warning that advises there should be caution. I do not consider that the circumstances that were the subject of comment as at the date of this advice, being 25 February 2016, have in any way altered, changed, or are of more concern than they were in 2014. Again, under further consideration, much of the history which provides the basis for the warning that travellers should exercise a high degree of caution arise out of events of 2003, 2004, 2005 and, admittedly, 2015.
In the circumstances of this case, and notwithstanding that there are some news clippings also attached as of 26 February 2016, which say:-
Popular tourist spots at risk of terror attack.
There is nothing in those documents that suggests the DFAT warning extends beyond a high degree of caution. In the circumstances of this case, and notwithstanding that I accept that the father holds a view now similar to his position before Judge Monahan on 15 May 2014 that there may be a risk and he would say an unacceptable risk, ultimately, I consider that orders should be made in terms of the mother’s application which would allow the mother to travel with the three children, J, Z and B, to Asia, during the period.
I certify that the preceding thirty one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 11 May 2016.
Associate:
Date: 30 May 2016
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