Portelli and Wymer - [2019] FamCA 428

FAMILY COURT OF AUSTRALIA

PORTELLI & WYMER

[2019] FamCA 428

FAMILY LAW – INTERNATIONAL TRAVEL – Where the mother makes an application to take the child overseas for a holiday with her family – Where the father contends this application is an abuse of process, and she may not return – Where the mother agreed to place $500,000 security for the return of the child – Where the mother proposed ongoing communication with the father during the travels – Where the mother proposed that a travel itinerary and proof of return flights be provided to the father – Where there is no evidence or suggestion the mother has any connections in overseas jurisdiction – Orders made to allow the child to travel with the mother.

APPLICANT:

Ms Portelli

RESPONDENT:

Mr Wymer

FILE NUMBER:

SYC

1941

2019

DATE DELIVERED:

5 July 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

3 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kearney SC with Ms Barnett

SOLICITOR FOR THE APPLICANT:

Lander & Rogers

COUNSEL FOR THE RESPONDENT:

Mr North SC

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan

Orders

IT IS ORDERED

That the Mother be at liberty to take the child X born … 2015 X out of the Commonwealth of Australia from 15 July 2019 to 4 August 2019 (Overseas Holiday) on the following conditions:
1.1The Mother provide to the Father by 5 July 2019 (or in the event a copy X’s passport is required to purchase his plane tickets, within 24 hours of the Department of Foreign Affairs and Trade issuing the passport for X pursuant to paragraphs 4 and 5 herein) copies of the following:
1.1.1Return plane tickets;
1.1.2Travel itinerary for her and X;
1.1.3Travel insurance certificate; and,
1.1.4Contact number for X during the overseas holiday.
1.2By 4.00pm on 10 July 2019, the Mother cause:
1.2.1the sum of $500,000 (the security payment) to be transferred into the Mother’s solicitors’ trust account by way of security in respect of the return of X to Australia by 4 August 2019 and the Mother shall be and hereby is restrained from causing or permitting any dealing in respect of such sum other than in accordance with these Orders; and,
1.2.2her solicitors to provide to the Father’s solicitors confirmation of the receipt of funds in accordance with Order 1.2.1 herein.
1.3Forthwith upon the Mother making X available for time with the Father in accordance with Order 3.2. herein, Order 1.2 shall stand discharged and the Mother shall be at liberty to deal with the security payment.
1.4In the event that X is not returned to Australia by 3.30pm on 6 August 2019 then by this Order the Mother irrevocably authorises and directs her solicitors to forthwith pay to the trust account of the solicitors for the Father the security payment and the Father shall thereafter be at liberty to apply the security payment to legal costs and disbursements incurred in relation to and as a consequence of the Mother’s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FamCA 428
Decision Date: 5 July 2019

CaseChat Overview and Summary

This matter concerned an application by the Mother for liberty to take the child, X, born in 2015, out of the Commonwealth of Australia for an overseas holiday between 15 July 2019 and 4 August 2019. The Father opposed the application. The proceedings were before Rees J in the Family Court of Australia.

The primary legal issue before the Court was whether to grant the Mother permission to travel internationally with the child, and if so, on what conditions. This involved balancing the child's right to maintain a relationship with both parents against the potential risks associated with international travel, particularly concerning the child's return to Australia. The Court also considered the need for appropriate security and communication arrangements during the period of travel.

Rees J ordered that the Mother be at liberty to take the child overseas on specific conditions. These included providing the Father with copies of return plane tickets, the travel itinerary, travel insurance, and a contact number for the child. Crucially, the Mother was required to lodge a security payment of $500,000 into her solicitors' trust account as security for the child's return to Australia by 4 August 2019. The Mother was also ordered to facilitate reasonable telephone or Facetime communication between the child and the Father during the holiday. The Court also made orders regarding the child's passport application and removal from the Family Watch List, and specified the consequences of contravening the orders.

Orders

Orders of the court

IT IS ORDERED

That the Mother be at liberty to take the child X born … 2015 X out of the Commonwealth of Australia from 15 July 2019 to 4 August 2019 (Overseas Holiday) on the following conditions:

1.1 The Mother provide to the Father by 5 July 2019 (or in the event a copy X’s passport is required to purchase his plane tickets, within 24 hours of the Department of Foreign Affairs and Trade issuing the passport for X pursuant to paragraphs 4 and 5 herein) copies of the following:

1.1.1 Return plane tickets;

1.1.2 Travel itinerary for her and X;

1.1.3 Travel insurance certificate; and,

1.1.4 Contact number for X during the overseas holiday.

1.2 By 4.00pm on 10 July 2019, the Mother cause:

1.2.1 the sum of $500,000 (the security payment) to be transferred into the Mother’s solicitors’ trust account by way of security in respect of the return of X to Australia by 4 August 2019 and the Mother shall be and hereby is restrained from causing or permitting any dealing in respect of such sum other than in accordance with these Orders; and,

1.2.2 her solicitors to provide to the Father’s solicitors confirmation of the receipt of funds in accordance with Order 1.2.1 herein.

1.3 Forthwith upon the Mother making X available for time with the Father in accordance with Order 3.2. herein, Order 1.2 shall stand discharged and the Mother shall be at liberty to deal with the security payment.

1.4 In the event that X is not returned to Australia by 3.30pm on 6 August 2019 then by this Order the Mother irrevocably authorises and directs her solicitors to forthwith pay to the trust account of the solicitors for the Father the security payment and the Father shall thereafter be at liberty to apply the security payment to legal costs and disbursements incurred in relation to and as a consequence of the Mother’s failure to comply with these Orders.

That for the period of the Overseas Holiday the Mother shall facilitate reasonable telephone or facetime communication between X and the Father during the Overseas Holiday, being not less than such communication on each Tuesday, Thursday and Sunday at 10am (being the time in the place in which X is) or such other time as the parties may agree in writing, with the Mother to initiate each such communication and to provide the Father with notice by text message of each such intended communication not less than 1 hour prior to it occurring.

That for the period of the Overseas Holiday paragraph 4 of the Orders of 17 May 2019 be suspended and, in addition to the time provided for pursuant to such Orders, time between the Father and X shall occur on the following occasions:

3.1 From 4pm on Friday, 5 July 2019 to 6.00 pm on Sunday, 7 July 2019;

3.2 From 3.30 pm until 6:30 pm on Tuesday, 6 August 2019; and

3.3 From 4pm on Friday, 16 August 2019 to 6.00 pm on Sunday, 18 July 2019.

That the Father forthwith do all things and sign all necessary documents to jointly apply with the Mother for an Australian passport for X on an urgent and expedited basis with the Mother to solely meet the costs of such application and with the Mother to be entitled to retain such passport upon issue provided that she provide such passport to her solicitors forthwith upon X’s return to Australia in accordance with these Orders and the Mother shall be and hereby is restrained from causing or permitting any dealing in respect of such passport other than in accordance with an Order of this Court.

That in the event that the Father does not comply with paragraph 4 herein, the Mother be authorised pursuant to section 11 of the Australian Passport Act 2005 (Cth) to execute all documents necessary to obtain a passport for and on behalf of X and it is requested that the Department of Foreign Affairs and Trade forthwith issue the passport for X.

That the child, X born in 2015 (X), be removed from the Family Watch List for the purpose of enabling X to travel with the Mother for the Overseas Holiday.

That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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