NEVILLE & NEVILLE

[2012] FamCA 590

FAMILY COURT OF AUSTRALIA

NEVILLE & NEVILLE [2012] FamCA 590

FAMILY LAW – CHILDREN – application by the mother seeking orders permitting the children to travel to the United State of America to visit the maternal family particularly a family member who is unwell – where the mother seeks to travel during the school term – where the Court must balance the disruption to the children’s education with the benefits of travelling with the mother – best interests – orders permitting the children to travel overseas.

FAMILY LAW – COSTS – where the mother seeks orders that the father pay the costs of and incidental to the proceedings – whether the circumstances justify the making of a costs order – consideration of section 117(2A) factors – where the mother was wholly successful in her application however the Court was not satisfied that the circumstances justified the making of a costs order – no orders as to costs.

Family Law Act 1975 (Cth) ss 60CA, 60CC & 117

APPLICANT: Ms Neville

RESPONDENT: Mr Neville

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DNC 254 of 2011

DATE DELIVERED: 18 July 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 18 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Farmer

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Barry

SOLICITOR FOR THE RESPONDENT:

Orders

1. The children K born on … July 2002 and B born on … March 2004 are permitted to travel with the mother from Darwin in the Northern Territory, Australia to … the United States of America from 30 July 2012 and returning on 27 August 2012.

2. The father provide to the wife the children’s Australian passports on or before 20 July 2012 enabling the children to travel with the mother to … the United States of America from 29 July 2012 to 28 August 2012.

3. Upon the mother’s and children’s return from the United States of America to Australia the mother return to the father the children’s Australian passports.

4. No order made as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Neville & Neville 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 ADELAIDE

FILE NUMBER: DNC 254 of 2011

Ms Neville

Applicant

And

Mr Neville

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is the application of the mother of two children.  The Application in a Case is filed on 29 June 2012 in which the mother seeks orders that the children, K, who was born in July 2002 and B, who was born in March 2004, be permitted to travel with her from Darwin to America, from 30 July 2012, returning on 27 August 2012, and that the husband provide the children’s passports to enable them to travel with the condition that on the return of the mother and the children, the passports for the children be returned to the father.

2. The affidavit in support of the application is the affidavit of the mother, also filed on 29 June 2012.  There is no response to the Application in a Case, save and except the father has filed an affidavit on 13 July 2012.  What is clear from the two affidavits of the parties is that there has been substantial communication between the parties in relation to the proposed travel arrangements that the mother wished to make in relation to taking the children to the United States to visit her family there.

3. The correspondence is large and sets out various proposals by the parties.  In particular, these include proposals by the father for the mother to travel without the children or for the mother to travel with the children on other dates, but not on the dates proposed by the mother.  Those negotiations and correspondence were obviously open and to the extent that there was any privilege, that had been waived by the production of the copies of the correspondence before me.

4. There is considerable dispute about some of the detail in the correspondence and how it should apply to the considerations which I have to make in determining the application now brought by the mother to this Court.  It is clear that the parties, having separated, are unable to exercise their parental responsibility and reach agreement, as is required by the underlying principles of the Family Law Act1975 (Cth) (“the Act”), ensuring that both parents fulfil their duties and meet their responsibilities to exercise their parental responsibility in relation to the children.

5. The responsibility, therefore, is handed over to the Court to make a decision about what is in the best interests of the children.  When making any parenting orders, section 60CA provides that the Court must regard the best interests of the child, as the paramount consideration.  There are specific matters which are required by section 60CC to be considered.  The primary considerations refer to the meaningful relationship with both of the children’s parents and the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

6. The material before the Court does not raise any of those primary considerations for determination.  In relation to the consideration of the other section 60CC factors, the matters which should be taken into account in this matter, are the likely effect of any changes in the child’s circumstances of any separation from his parents or other persons, the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents and in this particular case paragraph (m), “any other fact or circumstance that the Court thinks is relevant”.

7. The capacity of the parents is, as I have already indicated, of concern, in that they have been unable to come to an agreement in relation to something as simple as overseas travel for the children and to permit the mother to take the children with her to spend time with her family.  The Court is not in a position to be able to determine on the material before it, whether the great grandmother of the children is so seriously ill that she is about to die and whether any delay in the travel would affect the children’s capacity to meet the mother’s family.

8. In normal circumstances a child travelling to spend time with a dying member of the family would not be considered an “enjoyable” time but in these circumstances it is clear that the mother seeks to take the children with her to enjoy the company of her family, to be with her and have the opportunity to meet their great grandmother albeit at this difficult time.

9. In relation to the factors which have been referred to as significant in this matter, it is of significance that on the opening remarks made by counsel, I was told that the father would reluctantly agree to the children travelling to America at the times proposed by the mother, if both parties bore their own costs and he had make up time.  Apparently that proposal was not accepted by the mother.

10. The difficulty, therefore, between the parents, seems to be one of finances, rather than one that might be directly related to the best interests of the children.  The relationship between the children and the maternal family is one which is a factor which I should consider under section 60CC.  The correspondence between the parties indicates that the mother has been prepared to offer make up time for the father to spend further time with the children when they return.

11. The other significant factor is education and the impact upon the schooling of the children.  There is no doubt that spending four weeks away from school and days to recover when they return, would be time spent away from their education.  The mother, in her affidavit, addresses the issue to a certain extent, but the father does not accept that such arrangements would be in the best interests of the children.

12. The Court, therefore, has to balance the disruption to the children’s education with the benefits to the children of travelling with the mother and enjoying the interaction with the maternal family.  Taking into account that the parents were apparently capable of reaching an agreement, provided questions of finances are resolved, I am satisfied that arrangements can be made in relation to the children’s education and for time to be spent with the father, to the extent that they would then be able to benefit from the proposed travel.

13. In summary, therefore, I consider that it is in the best interests of the children, weighing up the various factors, that the children are able to travel with the mother at the times she has provided.  In doing so, I do not take into account that the mother made an assumption that she would be able to travel, and, therefore, book the tickets without the father’s permission.  I have specifically not taken that into account, as that makes an assumption which was inappropriate in the circumstances.  But I do consider after weighing all of the factors, that it is in the best interests of the children that the orders sought by the mother in paragraphs 2, 3 and 4 of the Application in a Case, be made.  I make those orders.

14. This is the application for costs in relation to this matter.  The mother seeks that the father pay the costs of and incidental to these proceedings.  That is opposed by the father.  The provisions of section 117 clearly indicate that each party to the proceedings shall bear his or her own costs, subject to the provisions of subsection (2).  That subsection provides that the Court may make such order as to costs where the Court considers it to be just, taking into account the factors in subsection (2A).

15. The significant factors in subsection (2A) in this matter are whether any party has been wholly unsuccessful in the proceedings, (subsection (e)) and the offers in writing that were made by the party to the proceedings to settle the proceedings and the terms of such offer, together with the financial circumstances of each of the parties to the proceedings.

16. The father has been wholly unsuccessful in the proceedings, in relation to the application by the mother to allow her to travel to the United States in the immediate future.  That is one factor that would support the application made by the mother for costs, as would the financial circumstances of each of the parties to the proceedings set out in the material which is on court file.

17. The other factor is, however, the offers that have been made and the negotiations which have been carried out in relation to these matters.  It is necessary not simply to find that one of the factors in section 117(2A) support the application for costs, but that taking those factors into account the court would consider it just to make such an order.

18. It is clear from the correspondence before the Court, and, indeed, this litigation, that the parties are unable to readily cooperate and agree on matters and have difficulty in negotiating any arrangement or any significant arrangements concerning the children, employing the solicitors to carry out the correspondence which has formed a large amount of the costs in this matter.

19. Taking into account, however, the factors which were raised to be considered in relation to this matter and in particular that it is a determination of what was in the best interests of these children on an interim basis (travelling out of the country during school term) I am satisfied that it is not just in this circumstance to make any order for costs and for the provisions of section 117(1) to apply;  namely, that each party shall bear his or her own costs of these proceedings.  I so order.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 18 July 2012.

Associate: 

Date: 26 July 2012