Mitchell & Sadko (No 2)

[2014] FamCA 377

FAMILY COURT OF AUSTRALIA

MITCHELL & SADKO (NO. 2) [2014] FamCA 377

FAMILY LAW – CHILDREN – International relocation – Determination of wife’s holiday time.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

APPLICANT: Mr Mitchell

RESPONDENT: Ms Sadko

FILE NUMBER: MLC 470 of 2012

DATE DELIVERED: 5 June 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: By Way Of Written Submissions

SUBMISSIONS RECEIVED FROM:

SOLICITOR FOR THE APPLICANT: Susan Snyder

SOLICITOR FOR THE RESPONDENT: FLA Partners

Orders

1. That the father have leave to immediately remove the children to the United States of America upon short notice.

2. That the children forthwith be able to travel internationally to the United States of America.

3. That the children be each provided with a mobile cell phone upon arriving in America at the father’s expense and otherwise access to home WiFi.

4. That the children spend time in Australia with the mother for not less than six weeks per year during the American school holidays.

5. That the mother be entitled to fly the children to Australia at her own return cost once per year for a period of up to two weeks convenient to the American school period save that it not occur at Christmas holidays (Australian time) in 2014-2015 but rather Christmas 2015-2016.

6. That any period that the mother has with the children in Australia at her expense shall not be offset during any period of time that she spends with them in the United States of America or other place abroad.

7. That the mother be permitted to contact the children by any communication means between the hours of 7.00am and 9.00pm USA Pacific time.

8. That if the mother wishes to attend in the United States and spend time with the children outside of holiday times of the children, her time be limited to weekends and such other times as is agreed.

9. To the extent that the mother’s family members attend the United States, similar provisions to the foregoing order apply.

10. That the parties otherwise spend time with the children as agreed.

11. That all applications are otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mitchell & Sadko (No. 2) 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 MELBOURNE

FILE NUMBER: MLC 470 of 2012

Mr Mitchell

Applicant

And

Ms Sadko

Respondent

REASONS FOR JUDGMENT

1. On 9 May 2014 I made orders concerning the three children of the marriage of these parties.  As a consequence of those orders, the three children will live with the father in the United States of America.

2. So focussed was the concentration of the parties that little attention was paid to the question of what would happen about ongoing relationships between the children and the parent remaining behind arising out of a relocation order.  Accordingly, I made a provision for the parties to make submissions about what orders they would seek but the evidence upon which I determine those matters was to be the evidence of the trial.  That has been the basis of this determination save for one thing.

3. It had always been the father’s position that the children should conclude their Australian schooling to the end of Term 2 which I understand is 27 June 2014.  As part of the father’s submission relating to future orders, he said that the three children had advised him that they were no longer in the care of their mother and indeed had been split into two families.  The two younger children had been residing with their maternal grandmother and the older child with friends of the father.  It was alleged that the mother had admitted herself or was admitted involuntarily, into a private psychiatric hospital where she there remained.

4. There is something of a dilemma with that position in that it was part of the submission and not the evidence.

5. In replying to the submission of the father, the mother’s solicitor wrote:

   By way of explanation, apart from removing irrelevant comments and altering grammar where necessary, the submissions now following are in my own client’s own words, which I thought would be rather more helpful to his Honour than mine.

   He then set out the position.  In terms of time, the submission of the father which was sent to the Court with a covering letter dated 22 May 2014, indicated that the father’s submission had been sent to the solicitor for the mother.  The mother’s proposal was dated 30 May 2014 and I have concluded that there is some substance to the father’s submission because neither the mother nor her legal practitioner commented upon nor disputed her current incapacity. 

6. Suffice to say, in respect of the variety of orders pursued now by both parties, there is otherwise general agreement.  Where there is not, the following rulings shall apply.  The dilemma is whether I should abridge the time allocated for the children to go to the United States.

7. The order I made provided for a determination to be made in chambers.  Section 69ZO provides that when exercising a child-related proceeding in chambers, the Court has all of the duties and powers that it otherwise has when it is dealing with a matter in open court.

8. Section 69ZM requires the Court to apply certain principles under Division 12A of the Family Law Act 1975 (Cth) (“the Act”) when determining child-related proceedings. Those principles are well-known and one of those is that the proceedings are to be conducted in a way that protects children. Another is that the proceedings are to be conducted with undue delay and with as little formality and legal technicality and form, as possible. That does not mean that a court can ignore the requirement that determinations be made on the evidence.

9. Section 69ZQ requires that when giving effect to the principles in s 69ZN, the Court must decide which matters can be disposed of summarily and where appropriate, deal with the matter without requiring the parties’ physical attendance at court.  It was for that reason that I decided not to allow the matter to be reopened when effectively, the issues about which I am now required to make a determination, were clear on the evidence before the Court. 

10. In respect of the timing of the trip to the United States of America, it had been the father’s wish that it not occur until the end of the school term but there does not now appear to be a parent looking after the children even if I do not have any specific evidence to that effect.  There is no indication from the mother that she is in the control of the children and by virtue of the statements that she has made in her own words, she proposes to spend time with the children on the basis that they live in the United States.  In my view therefore, notwithstanding the paucity of evidence about the timing of the trip to the United States, I see no reason why the orders I earlier made should not be altered to make an immediate move to the father’s home.  The mother can apply on very short notice in the event that she feels disadvantaged by that order or indeed that the father’s submission is not correct.

11. Section 69ZT makes clear that the Divisions 3, 4 and 5 of Part 2.1 of the Evidence Act 1995 (Cth) (apart from a small number of provisions), do not apply to child-related proceedings. That is consistent with the informality that I am now following.

12. In my view, the orders I am about to make factor in all of the matters in s 60CA and s 60CC of the Act. I do not intend to repeat those.

13. In the orders that are set out at the start of these reasons, I have noted the consent between the parties to those orders with which they agree.  Otherwise, these are orders of the Court.

14. It is only necessary for me to deal with those that are contentious. 

15. The mother sought that the holiday time during the Christmas period was to commence in 2014 whereas the father wanted 2015.  I think it is important for the children to have some period of time settling into the United States bearing in mind what they have been through and 2015 is a more logical approach.

16. The mother sought that there be flexibility in terms of time relating to electronic communication and the father’s position was that it be between the hours of 7.00am and 9.00pm but according to United States of America Pacific time.  I agree that that is a most sensible course of action having regard to the uncertainties that might otherwise affect any communication.  What it does mean is that the mother must make her calls around that specific time. 

17. The mother’s position was that if she came to the United States, the children should stay with her whilst she was there in a hotel and she would do all of the activities that she would otherwise be doing as a parent.  The father’s position was that it should be that they spend time with the mother on the weekend and otherwise stay with him during the school week.  I consider it better for the stability of the children to stay with the father during the week day time and on weekends when the mother is in the United States in school time.  The basis behind that is that problems occurred both prior to the hearing itself and now as a result of the matters that have been brought to the Court’s attention by the father.  Those are referred to in the judgment. There will no doubt be emotional scenes when the mother attends but in my view, it is more important for the children to maintain their routine.  To the extent that arrangements can be made between the mother and the father for some time during the weekdays such as an evening meal, one would hope that some common sense might prevail.

18. The parties agreed in principle that extended family members should spend time if they go to the United States and the same principles to which I have just referred should also apply.  The children’s time should not be disrupted.

19. The mother also sought what appeared to be a self-executing order that if the father “broke” any of the orders in a material way, she had an opportunity to seek to have the orders declared null and void and the children returned to her in Australia.  In my view, that is not appropriate to do that.  The correct approach is for the mother to make an application to the Court whereupon the jurisdiction will be enlivened.

20. Having indicated that Christmas 2015 was the more appropriate time, there should not be any other dispute between the parties about particular orders.  Accordingly the orders set out at the start of these reasons will apply forthwith.

I certify that the preceding Twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 5 June 2014.

Associate: 

Date:  5 June 2014