MCGOVERN & DONOGHUE (No.2)

[2018] FCCA 2159

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCGOVERN & DONOGHUE (No.2) [2018] FCCA 2159

Catchwords:
FAMILY LAW – Parenting – application for orders to allow the father to take the child to travel to (country omitted) – DFAT travel advice – where it is in the child’s best interest to travel to (country omitted) – orders made allowing the child to travel to (country omitted).  

Legislation:

Family Law Act 1975 (Cth), ss.65Y, 60CA, 60CC

Applicant: MR MCGOVERN

Respondent: MS DONOGHUE

File Number: MLC 5058 of 2016

Judgment of: Judge Kirton

Hearing date: 2 August 2018

Date of Last Submission: 2 August 2018

Delivered at: Melbourne

Delivered on: 2 August 2018

REPRESENTATION

Counsel for the Applicant: Mr Hutchings

Solicitors for the Applicant: Caroline Counsel Family Lawyers

The Respondent appeared in person

ORDERS

THE COURT ORDERS THAT:

1. Paragraph 4(c) of the Orders made on 29 May 2018 be varied to state:

   The Father does not propose to take [X] born 2005 (‘the Child’) to any part of a country for which The Australian Department of Foreign Affairs and Trade has published a travel warning or safety risk beyond ‘Level 2 – Exercise a high degree of caution’ as at the date of the proposed travel.

2. Pursuant to s.65Y of the Family Law Act 1975 the Father is hereby authorised to remove the Child from the Commonwealth of Australia for the purposes of travelling to (country omitted) departing no earlier than Friday 3 August 2018 and returning Monday 13 August 2018 (inclusive) to the Commonwealth of Australia.

AND THE COURT ORDERS BY CONSENT THAT:

1. That the Child’s time with the Mother as suspended by these Orders occur from 6:00 pm on Friday 21 December 2018 until 6:00 pm on Monday 14 January 2019 by way of ‘make-up’ time.

AND THE COURT NOTES THAT:

A.The Child is to spend time with the Mother pursuant to the extant Orders from 7.30 pm on 28 September 2018 until 6.00 pm on 6 October 2018 (being Term 3 school holiday time).

B.The Child is to spend time with the Mother:

(b)From 7.30 pm on 8 December 2018 until 6.00 pm on 12 December 2018; and

(c)From 6.00 pm on 21 December 2018 until 6.00 pm on 14 January 2019;

being the Child’s summer holiday time with the Mother, together with ‘make-up’ time for the upcoming (country omitted) holiday, save that in the event such time does not at the least represent one half of the holiday period, plus two nights, the time provided for in paragraph (b) above shall extend at the end to achieve that aim.

C.There be telephone communication between the Child and the Mother at approximately 8.00 pm on 2 August 2018 with the Mother being at liberty to call either the Child’s or Father’s mobile telephone.

D.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 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 the Annexure and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym McGovern & Donoghue (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 5058 of 2016

MR MCGOVERN

Applicant

and

MS DONOGHUE

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

Introduction

1. This matter comes before the court today in an application by which the father seeks urgent orders permitting the child, [X], born on 2005 ([X]), to travel to (country omitted) with the father, departing tomorrow 3 August 2018.  The mother opposes the application. 

2. Final parenting orders were made on 30 June 2017 by Judge Harland (Final Orders) after a three-day contested hearing.  An Independent Children's Lawyer was appointed to represent [X] for the proceedings. 

Background

1. The Final Orders included the following orders relevant for the purposes of today's application:

   (a)     That the father have sole parental responsibility for [X];

   (b)In making any significant long-term parental decision, the father use his best endeavours to consult with the mother by email or through the appointed family therapist, as appropriate;

   (c)     That [X] live with the father; and

   (d)That the father, as soon as reasonably practicable, arrange for a referral and do all things to engage the Child and Adolescent Mental Health Service in a private capacity to assess, monitor and treat [X] for any Autism Spectrum Disorder (ASD), if applicable.

2. The Final Orders also ordered that [X]'s spend-time and communication with his mother was suspended for a period of three months.  Thereafter, there was a graduated program of re-introduction, with [X] having supervised contact with his mother each alternate weekend for a period of three months for two hours. 

3. [X] presently spends time with the mother each alternate weekend from 7.30 pm Friday until 6.00 pm Sunday, pursuant to the Final Orders.

4. The mother has deposed in her affidavit filed 1 August 2018 that since the commencement of weekend visits, pursuant to the Final Orders, [X] has only visited her for the weekend on three weekends.  Subsequent to the Final Orders, [X] was diagnosed with Autism Spectrum Disorder or Asperger's Syndrome. 

5. On 21 November 2017, the mother filed an Initiating Application seeking interim orders that the Final Orders made on 30 June 2017 be discharged, and that the father forthwith deliver [X] to the child care facility at the court. She also sought interim orders that [X] live with the mother, and spend specified times with the father, and that she have sole parental responsibility for [X]. 

6. On 7 December 2017, Judge Harland again ordered [X] be represented by an Independent Children's Lawyer.  On 22 January 2018, Judge Harland made orders in chambers that:

   1.Noting the Applicant Mother seeks to discontinue her application, the Applicant Mother's Initiating application, filed on 21 November 2017 be dismissed.

   2.By consent that the Applicant Mother and Respondent Father bear their own costs of and incidental to the proceedings.

7. The parties were last before the court on 29 May 2018 in circumstances which have led to this application.  On 28 May 2018, the father filed an Initiating Application which was listed before me in the Duty List on 29 May 2018. 

8. That Initiating Application sought orders that would permit the father to travel with [X] to (country omitted) between 31 May 2018 and 8 June 2018, together with ancillary orders in relation to permission to travel internationally with [X], and orders for makeup time for the mother.

9. Relevantly, for the purposes of today's application, the father sought the following interim and final order:

   The father does not propose to take the child to a country for which DFAT has published a travel warning or safety risk as at the date of the proposed travel.

   The Initiating Application was supported by an affidavit affirmed by the father on 28 May 2018, and filed on 28 May 2018.  Relevantly, for the purposes of this application, the father's affidavit deposed as follows, and I quote paragraph 29:

   [X] has made significant progress in his formal education, therapeutic interventions for Autism Spectrum Disorder, and his childhood development since he began living with me.

   Paragraph 30:

   I have previously (likewise unaware of the requirements of Section 65Y of the Act at that time) made arrangements for [X] and myself to attend a conference/retreat at a resort on (country omitted) between 5 August 2018 and 11 August 2018. It is for families with children who have Autism Spectrum Disorder also called Asperger's Disorder. I believe [X] would benefit greatly from it. Details of the event can be found at

   Paragraph 31:

   I refer to general knowledge.  (country omitted) and (country omitted) are signatories to the 1980 Hague Convention on Civil Aspects of International Child Abduction.

   Paragraph 32:

   To avoid having to make further applications for any other overseas travel during the balance of [X]'s childhood, I seek orders permitting [X] to travel overseas generally which would allow him to travel to (country omitted) with me in August 2018, and otherwise overseas to ‘Hague Convention’ countries in future.

10. On 29 May 2018 the mother and father were represented by counsel, and counsel also appeared for the Independent Children's Lawyer.  Final orders were made by consent that day (Travel Orders).  Relevantly, for the purposes of this application, the Travel Orders included the following orders:

    4. Pursuant to section 65Y of the Family Law Act, the Father be authorised to remove the child from the Commonwealth of Australia for the purposes of overseas travel provided the following conditions are met:

    […]

    4(b)  The Father does not propose to take the child to a country which is not a signatory to the Hague (Child Abduction) Convention, save for school trips and/or travel to (countries omitted), notwithstanding they are not Convention countries.

    4(c)  The Father does not propose to take the child to a country for which DFAT has published a travel warning or safety risk as at the date of the proposed travel.

    4(d)  No less than 30 days prior to any proposed overseas travel, the Father provide to the mother the following:

    (i)Copies of final travel itinerary and return airfares for the child, including all countries of stopover or final destination;

    (ii)Dates for confirmation of makeup time if any time between the child and the mother would be affected by the proposed travel;

    (iii)Contact details whilst overseas, and proposed times for communication between the child and the mother by telephone or Skype.

Current Application to Travel to (country omitted)

1. Turning to the current application to travel to (country omitted), this matter comes before the court today by an Initiating Application filed by the father yesterday on 1 August 2018.  The father seeks the following interim orders:

   (1)That paragraph 4(c) of the orders made on 29 May 2018 be varied to state that:

   The father does not propose to take the child to a location for which DFAT has published a "do not travel" warning as at the date of the proposed travel.

   (2)Pursuant to section 65Y of the Family Law Act, the father is hereby authorised to remove the child, [X], (the child), from the Commonwealth of Australia for the purposes of travelling to (country omitted) departing no earlier than Friday 3 August 2018 and returning Monday 13 August 2018 (inclusive) to the Commonwealth of Australia.

   (3)That the child's time with the mother, as suspended by these Orders, occur from 9.00 am on Friday 21 December 2018 until 6.00 pm Monday 14 January 2019 by way of makeup time.

2. Today, the father's counsel has prepared a minute of proposed orders, headed ‘Applicant's Minute of Proposed Orders’, in the following form:

   (1)That subparagraph 4(c) of the Orders, made 29 May 2018 be declared void for uncertainty and/or otherwise struck out.

   (2)In the alternative to paragraph (1) above, that paragraph 4(c) of the Orders made on 29 May 2018 be varied such that it reads as follows:

   The Father does not propose to take the child to any part of any foreign country to which a DFAT "do not travel" warning applies to said part at the time of exiting the Commonwealth of Australia;

   (3)For the avoidance of doubt, pursuant to section 65Y of the Family Law Act, the Father is hereby authorised to remove the child [X] born 2005 (the child) from the Commonwealth of Australia for the purpose of travel to (country omitted), departing no earlier than 3 August 2018 and returning to Australia on or about 13 August 2018.

   (4)The child spend makeup time with the mother in lieu of time forgone for the travel provided for in paragraph (3) herein from 9.00 pm on 21 December 2018 until 6.00 pm on 14 January 2019, this being inclusive in part of the time in accordance with extant orders.

   (5)The mother pay the costs of the Father of, and incidental to this application fixed in the sum of $3,847.

3. The father's Initiating Application is supported by an affidavit affirmed by the father on 1 August 2018 (father’s affidavit).  The father deposes that on 26 June 2018, his solicitors sent a letter to the mother's lawyer confirming the date of [X]'s travel to (country omitted), and proposed dates for [X] to have makeup time with the mother.  This letter is annexure M-1 to the father's affidavit.  The letter, relevantly, states:

   […] our client is mindful that he must provide your client with makeup time to account for the time [X] will be on (country omitted) between 3 August 2018 and 12 August 2018. 

4. The father deposes that on 28 June 2018, the mother responded to his lawyer's letter by email and did not raise any objection to the trip to (country omitted).  As a result, on 10 July 2018, the father proceeded to book his flights and accommodation for the trip to (country omitted) through Travel Agent. 

5. On 17 July 2018, the mother sent an email to the father's lawyers objecting to [X] travelling to (country omitted) for various reasons.  The father deposes that one of the reasons was that he had failed to provide the mother with a travel itinerary 30 days prior to the trip.  The father says that he was unable to provide the mother with this information within the timeframe stipulated within the Travel Orders as he had not yet booked and paid for the flights and accommodation.

6. On 17 July 2018, the father sent an email to the mother with a copy of the invoice and itinerary for the trip to (country omitted) provided by Travel Agent.  This is annexure M-2 the father's affidavit.  The father has arranged and paid for [X] to attend the Asperger's Experts Family Retreat at (country omitted) between 5 and 11 August 2018.  The expense is considerable.  Information about the Asperger's Experts (country omitted) Family Retreat experience is annexed to M-4 of the father's affidavit.

7. The mother objects to [X] going to (country omitted).  The mother has affirmed an affidavit of 1 August 2018 which I have received in court this morning and read.  If I may summarise her concerns, they are that the official travel advice for (country omitted) from Department of Foreign Affairs and Trade (DFAT) is a High Degree of Caution.  Secondly, that she was not given 30 days notice of the final travel itinerary, which is information pursuant to paragraph 4(d)(i) of the Travel Orders, and she should have received this information by 6 July 2018.  And thirdly, she is concerned about the real benefit that [X] will receive from the trip.  She has annexed, as annexure 8 to her affidavit, the Asperger Experts disclaimer which says:

   Disclaimer:   We are not Psychological or Therapy Professionals.

Consideration

1. Turning to the legislation, s.60CA of the Family Law Act 1975 (Cth) (the Act) requires that in deciding whether to make a particular parenting order in relation to a child, the court must have regard to the best interests of the child as the paramount consideration.

2. Section 60CC requires that in determining what is in the child's best interests, the court must have regard to the matters set out in subsections (2) and (3). Section 60CC(2) provides that the primary considerations are:

   (a)the benefit to the child of having a meaningful relationship with both of the child's parents;  and

   (b)the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

Travel to (country omitted)

1. Turning to the trip to (country omitted), I am of the opinion that it is in [X]'s best interests to go on this trip for the following reasons. Under s.60CC(3)(i), the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parents are relevant. It was a specific order of the Final Orders that:

   The father, as soon as reasonably practicable, arrange for a referral and do all things to engage the Child and Adolescent Mental Health Service in a private capacity to assess, monitor and treat [X] for any Autism Spectrum Disorder, if applicable.

2. I consider now that [X] has been diagnosed with ASD, the father is performing his obligations, pursuant to the Final Orders, in taking [X] to (country omitted) to participate in the Asperger Experts (country omitted) Family Retreat.  The father deposes in his affidavit that he believes that the (country omitted) Family Retreat will assist [X] in working on vital social skills that he will need for secondary school next year. 

3. Furthermore, the Independent Children's Lawyer has indicated to the court that he supports [X] travelling to (country omitted).

4. The father deposes that [X]'s attendance at the (country omitted) Family Retreat has the support of [X]'s psychologist, Dr R, who specialises in ASD, and it also has the support of [X]'s occupational therapist whom he sees weekly. 

5. Turning to s.60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court think are relevant to the weight it should give to the child's views.

6. [X] attends the School A.  The Principal has written a letter, dated 31 July 2018, which is annexure M-5 to the father's affidavit.  The letter states:

   I am writing on behalf of [X] to support his participation in a camp specifically designed for children of his age who have been diagnosed with Asperger's Syndrome.  I understand this camp will provide opportunities for him to engage in social skill development which is an area he desperately needs further work in. 

   He has spoken to his class teacher and to me about how he really wants to go to this, but that his mother has said that she will not grant permission.  This has significantly heightened his anxiety over the past week.  He is a very articulate child who can express his needs very well.  As a school, we believe this opportunity will be of significant benefit to [X]. 

7. This letter from the Principal is significant as it indicates that [X] has expressed a desire to her that he wants to attend the (country omitted) Family Retreat.  It also indicates that in the principal's opinion, [X] would benefit from attending. 

8. Turning to s.60CC(3)(m), any other fact or circumstance that the court thinks is relevant. The father deposes that DFAT has published a travel warning in relation to (country omitted), and that the areas he proposes to travel have been categorised as Level 2 "Exercise a high degree of caution". The mother also deposes to this in her affidavit. Annexed to the father's affidavit, as annexure M-3, is a copy of the travel advice explained by DFAT. There are four levels of travel warning with Level 4 being "Do not travel".

9. In paragraph 4(b) of the Travel Orders, the parties agreed that [X] may travel to (countries omitted), notwithstanding that they are not Hague Convention countries.  Of these countries, (country omitted) presently has, as with (country omitted), an overall Level 2 "High degree of caution" advice.  This was the position when the parties entered into the consent orders for the Travel Orders.  I also note annexure D-13 to the mother's affidavit, being the court appearance sheet for the mother's solicitors on the date the Travel Orders were made.  The court appearance sheet states:

   After negotiations, it was agreed that the Father would not be permitted to travel with the child to non-Hague Convention countries, save for (countries omitted) given they are popular tourist destinations for Australia, and the Father would like to take the child there in the future.

10. It is the view of the court that it is inconsistent for the mother to have consented to [X]'s travel to (country omitted), and yet now object to travel to (country omitted) in these circumstances.  Whilst the court is prepared to make orders allowing this particular trip to (country omitted) to take place, the court is nevertheless not prepared to make orders on an urgent interim basis as sought in paragraphs (1) or (2) of the Applicant's Minute of Proposed Orders.  So by way of conclusion, I propose to make orders permitting the travel for tomorrow, as I have indicated.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Kirton

Date: 9 August 2018