PARRIS & JOHNSTONE

[2015] FCCA 2862

FEDERAL CIRCUIT COURT OF AUSTRALIA

PARRIS & JOHNSTONE [2015] FCCA 2862

Catchwords:
FAMILY LAW – Children – overseas travel – international travel – where father wishes to take child to (country omitted) on a holiday – security for return of child – parental responsibility – equal shared parental responsibility.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65Z

Cases cited:
Kuebler & Kuebler (1978) 4 Fam LN 4; FLC 90-434
In the Marriage of Line (1996) 21 Fam LR 259; (1997) FLC 92-279

Applicant: MR PARRIS

Respondent: MS JOHNSTONE

File Number: SYC 5372 of 2015

Judgment of: Judge Scarlett

Hearing date: 22 October 2015

Date of Last Submission: 22 October 2015

Delivered at: Sydney

Delivered on: 23 October 2015

REPRESENTATION

Counsel for the Applicant: Ms Cantrall

Solicitors for the Applicant: Pigdon Norgate Family Lawyers

Counsel for the Respondent: Ms Reynolds

Solicitors for the Respondent: S. Davitt Family Lawyers

ORDERS

UNTIL FURTHER ORDER

1. The parties are to have equal shared parental responsibility for the child X born (omitted) 2011.

2. The child X born (omitted) 2011 is to spend time with the Father between 15 December 2015 and 8 January 2016 and the Father is permitted to take the child X out of the Commonwealth of Australia and travel with him to the (country omitted) for the period from 17 December 2015 to 1 January 2016 provided that the Father:

   (a)provides to the Mother a copy of a return airline ticket for the child X;

   (b)provides to the Mother a detailed itinerary providing addresses and telephone numbers for the accommodation where the child will be staying; and

   (c)deposits into the Trust account of the Mother’s solicitors the sum of $200,000.00 to be applied subject to Order 3 below.

3. The funds deposited into the Trust Account of the Mother’s solicitors are to be retained and distributed only in accordance with the following Orders:

   (a)Within seventy-two (72) hours of the Father’s return to Australia with X, the Mother’s solicitors must return to the Father the said amount of $200,000.00, in accordance with a request to be made by a letter from the Father’s solicitors and confirmation of the date of the Father’s return with the child; and

   (b)In the event that the Father fails to return with the child X to Australia by 3 January 2015 with the exception of an inability to travel due to illness or airline cancellation or variation then the Mother’s solicitors will be at liberty to pay to the Mother the funds to be used in any legal proceedings for the return of X to Australia.

4. UNTIL FURTHER ORDER the Father is to retain possession of the child’s passport subject to his utilising that passport to travel with the child only in accordance with Orders of the Court or written agreement of the parties in accordance with the Family Law Act 1975.

5. Whilst the child X is in the care of the Father in accordance with Order (2) above he must do all things necessary to ensure that the child communicates with the Mother by Facetime, telephone or other means no less frequently than every two (2) days.   

IT IS NOTED that publication of this judgment under the pseudonym Parris & Johnstone is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5372 of 2015

MR PARRIS

Applicant

And

MS JOHNSTONE

Respondent

REASONS FOR JUDGMENT

Application in a Case

1. This is an Application in a Case by the father of a little girl called X. The father, who is the Respondent to the substantive Application for parenting and property orders, seeks interim orders allowing him to take X to the (country omitted) with him for a holiday to see his extended family between 15 December this year and 8 January next year.

2. The father plans to be accompanied on this trip by Ms K, a lady with whom he is in a relationship.

3. Both the father and Ms K were born in the (country omitted) and have family members in that country.

4. The mother opposes the father’s application, for two main reasons:

   a)She fears that the father may not return to Australia with the child; and

   b)In any event, the length of the proposed trip out of Australia, 23 days, is significantly longer than any previous separation that the child has had from her mother.

Background

1. The mother was born on (omitted) 1980. She is 35 years of age. The father was born in the (country omitted) on (omitted) 1978. He is 37 years of age.

2. According to the mother’s affidavit of 14 August 2015, the parties first met on (omitted) in 2009 and commenced a relationship shortly afterwards. They commenced living together on (omitted) 2010. They separated and lived separately under the one roof in about February 2014 and physically separated in about October 2014.

3. There is one child of the relationship, X, who was born on (omitted) 2011.

4. The parties have each formed new relationships. 

Procedural History

1. The mother commenced proceedings in this Court by filing an Application for parenting and property orders on 17 August 2015. The Application is returnable before Judge Monahan on 7 December 2015 but that date has been overtaken by events, as the father has filed his Application in a Case seeking the Orders allowing him to take X out of the country in December. The father sought that his Application should be listed urgently, and, as his Honour Judge Monahan was away, I agreed to the proceeding being listed in my docket for the purpose of this Application.

2. The substantive proceeding will return to his Honour’s docket for the mention on 7 December, but I have made procedural orders:

   a)directing the parties to attend a Child Dispute Conference on 28 October; and

   b)directing the parties to attend a Conciliation conference before a Registrar on 22 March 2016.

3. The parties do not wish to wait for the Child Dispute Conference to take place but have briefed counsel and seek to have this issue resolved without delay.

Evidence and Submissions

1. The father relies on the following documents:

   a)His Application in a Case filed on 15 October 2015;

   b)His affidavit of that same date;

   c)A Notice of Risk;

   d)The affidavit of Ms K sworn or affirmed on 21 October 2015; and

   e)A Minute of Proposed Orders, prepared by his Counsel, Ms Cantrall.

2. The Minute contains Orders that are slightly different from those set out in the Application in a Case.

3. The mother relies on her original documents. Her counsel, Ms Reynolds, told the Court that the mother’s solicitors had not had sufficient time to file and serve a Response to the Application in a Case or a specific affidavit. The mother did not seek an adjournment and relied on the submissions of her counsel opposing the Application.

The Applicant’s Proposal

1. The father proposes that he should deposit the sum of $10,000.00 into the trust account of the mother’s solicitors as security for the child’s return. He also refers in his affidavit at paragraph [124]:

   Presently we have approximately $383,000 in a joint account being proceeds of our family home to be divided as a result of the property settlement. I am happy to leave with my lawyer a signed letter of authority and withdrawal slip providing that if I fail to return within 2 days of 8 January 2016, other than for a reason preventing the airline departing from (country omitted), then my lawyers be instructed and authorised to hand to Ms Johnstone’s solicitor that transfer to facilitate her receiving all the funds in that bank account as a security for my return.[1]

   [1] Affidavit of X 15.10.2015 at paragraph [124]

Submissions

1. Counsel for the mother submitted that the length of stay, some 23 days, is excessive, as the child has only previously been out of the mother’s care for ten days in the past.

2. The Court needs to be satisfied that the father’s proposal is a bona fide one and that he is not planning to depart permanently from Australia with the child. Ms Reynolds submitted that the father has no business or real estate interests in Australia, no close friends (except Ms K) and no immediate family in this country. He has a job but he could always leave. He is not an Australian citizen, nor is Ms K.

3. Again, the mother is currently subject to a good behaviour bond, imposed after an incident between her and the father for which she was charged with an assault. She is also subject to an Apprehended Violence Order. Ms Reynolds submitted that whilst the mother is subject to these Orders it is possible she could be denied entry to the (country omitted), if it were necessary for her to go there to give instructions in any legal proceedings for the return of the child to Australia.

4. Counsel for the mother was also critical of the father’s proposal for a transfer of the money in the joint account, some $383,000.00, if the father did not return to Australia with the child. Why, she suggested rhetorically, should he not just transfer the whole $383,000.00, or even $100,000.00, to provide an adequate security?

5. It was further submitted that, in the past, the paternal grandmother has had a negative attitude towards the mother and does not believe that it is important for the child to have a close relationship with her.[2] The mother has also deposed that the father has on a number of occasions since January 2014 threatened to take the child to live in (country omitted).[3]

   [2] Affidavit of Ms Johnstone 14.8.2015 at [61]

   [3] Ibid at [20]

6. Ms Cantrall for the father submitted that he is not a flight risk, as he has made his home in Australia and has formed a relationship with Ms K. True it is that they are both citizens of the (country omitted), but they both have permanent resident status in Australia.

The Relevant Law

1. There are no parenting Orders in force, but there are proceedings pending, in which both parents seek orders that they should have equal shared parental responsibility for X. The father, in his Response, seeks a final order that the child should live with him, which is unlikely to give the mother a great deal of confidence in the bona fides of the father’s application to take the child to the (country omitted).

2. It is an offence under s.65Z of the Family Law Act 1975 (Cth) to take a child out of Australia when proceedings are pending without either the written consent of the other party to the proceedings or an order of a court of competent jurisdiction.

3. It has been held in the cases of Kuebler & Kuebler[4]and In the Marriage of Line[5] that the purpose of fixing an appropriate level of security for the return of children to Australia, a trial should, in the exercise of the court’s discretion, have regard to a number of relevant factors, including:

   a)The purpose of the security; to provide a sum would realistically entice the person removing the children to return and to provision the party remaining in Australia adequately in order to take action and proceedings in Australia and overseas to obtain the return of the children if required;

   b)The degree of risk that the departing parent will choose not to return;

   c)Whether the country to which the parent will travel with the children is a signatory to the Convention on the Civil Aspects of International Child Abduction (the Hague Convention); and

   d)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 the non-departing parent if security were fixed at a lower level. Hardship flowing to the children flowing from these factors will also be relevant.

   [4] (1978) 4 Fam LN 4; FLC 90-434

   [5] (1996) 21 Fam LR 259; (1997) FLC 92-279

Consideration

1. It should not be thought that, when the Court is considering an application to take a child out of Australia, the only matter to be considered is the amount of security to be set to go towards the cost of proceedings to bring about the child’s return.

2. The Court must consider:

   a)whether or not it is in the child’s best interests to leave Australia at all; and

   b)the circumstances of the proposed travel.

3. It is not unknown for a Court to decide that a child should not travel to a particular part of the world because the circumstances in that place would pose a threat to the child’s safety.

4. This is not such a case. Ms Reynolds conceded that there was no suggestion that the (country omitted) was an unsafe place to take the child.

5. The proposal for the child to travel with her father and his partner to spend time with grandparents and other extended family would appear at first blush to be in the child’s best interests. The child has travelled to the (country omitted) before, in (omitted) 2014.[6]

   [6] Affidavit of XA. Portess 15.10.2015 at [66]

6. I am, however, concerned at the length of time of the proposed overseas travel, some 23 days. The child has not been away from her mother for more than 10 or 12 days in the past. She is still only young, and a period slightly in excess of three weeks seems excessive. Ms Cantrall of counsel explained that the journey by air is quite lengthy and a reasonable period of time would be needed to allow the child to settle into a different time zone. It is a matter of common knowledge that airline flights from Sydney to the (country omitted) can take in excess of 21 hours, but I am still of the view that the child would be away from her mother for too long.

7. The amount of $10,000.00 proposed by the father as security for the child’s return is inadequate, in my view. It would certainly cover an economy class airfare but it would not go far towards the cost of legal proceedings, either in Australia or the (country omitted). As Ms Reynolds submitted, why should not the entire amount of $383,000.00 in the joint account be utilised as security, or even $100,000.00? The funds are available.

8. The arrangement proposed by the father in paragraph [124] of his affidavit is unsatisfactory, to my mind. There should be immediate access to a sufficient sum of money to provision the mother to commence legal proceedings if the father were to choose to retain the child in the (country omitted).

9. I am not of the view that there is an unacceptable risk of the father failing to return to Australia with the child. Both he and his partner are citizens of the (country omitted), but there are many such citizens living in this country. That is a matter of common knowledge. It is significant that they have both obtained permanent resident status in that country. They have full-time employment. The father has an interest in a sum of $383,000.00 currently held in Australia.

10. (country omitted) is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. (country omitted) has a well-established and effective legal system. I am in no doubt that recourse could be had to the appropriate procedures if the father were to retain the child and not return her to Australia.

11. I am not persuaded that the mother’s current status under her good behaviour bond or Apprehended Domestic Violence Order would necessarily pose an insuperable obstacle to her in the unlikely event that she needs to commence proceedings for the child’s return to Australia.

12. I have considered the parties’ financial circumstances. The father clearly has the wherewithal to deposit an amount of $10,000.00 as security for the child’s return. More importantly, he has deposed that there is an amount of $383,000.00 in a joint bank account, being the balance of proceeds of the sale of the parties’ former home.

13. There is no agreement between the parties as to whether he is entitled to all of that amount or only a part. The mother’s counsel told the court that her client believes that she has an entitlement to some part of the money. That particular question can be decided on another day.

Conclusions

1. I am satisfied that it is in this child’s best interests that she should be able to travel to the (country omitted) with her father to spend time with her paternal extended family.

2. I am not satisfied that it is in the child’s best interests to remain away from her mother, even with regular telephone and Facetime contact, for 23 days. It appears to be nearly twice as long as any previous separation from her mother, and the child may become distressed. A period of approximately 14 to 16 days would appear to me to be more acceptable.

3. The sum of $10,000.00 is, to my mind, inadequate as security. It should not be necessary for the entire amount of $383,000.00 to be added to that sum, as Ms Reynolds suggested, but a figure of $190,000.00, approximately that amount, can readily be added to the sum of $10,000.00 proposed.

4. In my view the father has the capacity to deposit an amount of $200,000.00 as security. That should be more than enough to provision any reasonable legal proceedings in Australia and the (country omitted). Moreover, it is a sum that the father would be reluctant to lose if her were to fail to comply with his obligation to return the child to Australia.

5. I note that each party seeks an Order that they should have equal shared parental responsibility for X. As there is no issue on that point, I will order accordingly.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  23 October 2015