Quigley & Yates
[2024] FedCFamC1F 723
•29 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Quigley & Yates [2024] FedCFamC1F 723
File number: BRC 4929 of 2023 Judgment of: BRASCH J Date of judgment: 29 October 2024 Catchwords: FAMILY LAW – INTERIM PARENTING –Whether the father is permitted to take the child overseas for two weeks to see his family – Where country is a Hague Convention Country – Where mother opposes the visit -– Whether the child should change schools to a school that might make her happier–– Where the mother opposes the child changing school - Interim Orders made – Travel allowed but school not changed
FAMILY LAW - COSTS – Where parties required to read s 67 and 68 of the FCFCOA Act if contemplating an application for costs – Where costs pressed, parties required to particularise costs and how apportioned between the travel application and school application on affidavit
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67, 68
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.13
Hague Convention on the Civil Aspects of International Child Abduction
Cases cited: Bilz & Breugelman [2013] FamCA 578
Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Eden & Eden-Proust [2011] FamCAFC138
Line & Line (1997) FLC 92-729; [1996] FamCA 145
Re G (Children’s Schooling) (2000) FLC 93-025; [2000] FamCA 462
Division: Division 1 First Instance Number of paragraphs: 109 Date of hearing: 28 October 2024 Place: Brisbane Counsel for the Applicant: Mr Carter Solicitor for the Applicant: Madsen Law Counsel for the Respondent: Mr Clark (direct brief) ORDERS
BRC 4929 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR YATES
Applicant
AND: MS QUIGLEY
Respondent
ORDER MADE BY:
BRASCH J
DATE OF ORDER:
29 OCTOBER 2024
THE COURT ORDERS ON AN INTERIM BASIS THAT:
1.The father be permitted to take the child X born 2009 overseas to Country B during two dates in mid-2025, provided that:
(a)The father is restrained by injunction from taking the child to any country about which the Department of Foreign Affairs and Trade has issued a travel advice on the website in one of the following categories:
(i)High degree of caution;
(ii)Reconsider your need to travel; or
(iii)Do not travel;
(b)The father shall provide the mother with a copy of the itinerary for the trip including but not limited to departure and return times and dates, contact telephone number for the travelling parent and the child and the address at which they will predominately be based (provided that they will not be required to provide details of every address at which the child will stay) at least 28 days prior to the scheduled departure;
(c)That for the purpose of this Order 1, the child be at liberty to travel in the company of the Father to Country B to spend time with her paternal grandparents.
2.The mother be at liberty to have make up time if the time the child travels overseas falls during the time she would ordinarily be spending with the mother.
3.The child's travel on any occasion pursuant to these Orders shall be conditional upon the following:
(a)The father’s compliance with Order 1(a) and (b).
4.The parents shall within fourteen (14) days of the date of this Order, do all acts and things and sign all such documents as may be required to renew or reapply for the passport for the child.
5.The parent who makes the request to be responsible for the payment of any fees and if neither party makes the request, the passport shall lapse.
6.The child's passport shall be retained by the father, save for the periods when the mother is travelling with the child outside of the Commonwealth of Australia and for that purpose:
(a)The father must provide the child's passport to the mother, not less than fourteen (14) days prior to the date of departure; and
(b)The mother must return the child's passport to the father, no more than fourteen (14) days after the date of return to the Commonwealth of Australia.
7.In the event, that the child's passport is lost, stolen or damaged or expires, then the party who held the passport at the time is responsible for replacing the passport in a timely manner and for payment of any costs associated with same.
8.If Order 5 applies, upon the request of one parent to the other in writing, the parent shall within twenty-one (21) days of such written request having been made, do all acts and sign all documents as may be required to apply for an Australian Passport for the child.
Bond
9.Not less than 14 days prior to overseas travel as permitted by these orders, the father shall cause the sum of $15,000 to be deposited to the Madsen Law law practise trust account and for that sum to be held on trust and to be released to the father or mother in accordance with Orders 10 and 11 whichever apply, PROVIDED that the trust account receipt for the sum of $15,000 shall be sent by Madsen Law to both the father and mother to their email addresses as follows:
(a)father - …@…
(b)mother- …@…
10.Upon the father returning to Australia and producing to Madsen Law the child's passport, the father's passport and a copy of the boarding pass for the child’s return flight to Australia, Madsen Law shall forthwith release the sum of $15,000 to the father.
11.If the father fails to satisfy the conditions of Order 10, then within seven days of the scheduled return date to Australia and upon the mother serving on Madsen Law a sworn affidavit of the mother deposing to the father's failure to return the child to Australia, for reasons not including travel disruption caused by illness to the father or the child or civil unrest, then Madsen Law shall forthwith release the sum of $15,000 to the mother.
Schooling
12.The remainder of the father’s Application in a Proceeding filed 19 August 2024 relating to a change of school, being Orders 10-13, is dismissed.
Costs
13.If the parties wish to make an application for costs, they are to file any such application and supporting affidavit (which will include a precise calculation with particulars as to how such sums sought were calculated and how they are allocated between the travel application and school application) within 14 days of the making of these orders, being by 4.00 pm on 12 November 2024.
14.If no such applications are made within 14 days of the date of these orders, the Applications in a Proceeding relating to costs will be dismissed.
15.In considering whether to apply for a cost order, the parties are to consider s 67 and 68 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and s 117 of the Family Law Act 1975 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BRASCH J:
These are my Ex Tempore reasons. I will correct the transcript for any grammatical error and to make spoken words more amendable to reading.
Just over a year ago, on 19 October 2023, the parties entered into an extensive set of parenting orders on a final and consent basis. Those orders set out the parenting arrangements for their daughter X born 2009 (“the child”), although she is really a young woman. X will soon be 15 years old.
In short, the final consent orders provide that the parents share major long-term decision making (or equal shared parental responsibility as it was called then), that she spend week about with each parent both during term time and school holidays, the sharing of special occasions and an information sharing regime.
The parties are also in dispute about property matters but that is not before me.
The remaining parenting disputes, which the parties applied to be heard on an interim basis, are as follows:
(1)Whether the child should change school from D School where she has attended all of her educational life to C School , Suburb E. The father sought that order and the mother opposed it; and
(2)Whether the father is able to take X to Country B for a holiday in mid-2025. The father sought orders to that effect (although the exact dates fell from the father’s counsel at the bar table). The mother opposed the travel order.
Given the parties had filed material in relation to both issues, I offered to hear the two disputes on a final basis at the end of this week. The father initially maintained that would not give him enough time to put on evidence from an appropriate expert, say, an educational psychologist, to make good his submission that C School would be a "better fit" for the child.
There is an irony in that submission – it was the father who was moving the Court by filing his Application in a Proceeding and affidavit in support of the interim schooling orders he sought. One would have thought he would have his evidentiary ducks in a row.
The mother's position was that I could hear the interim applications on the papers. Ultimately the father joined in that position.
BACKGROUND
The father was born in 1978 in Country B and still has family there. The father commenced living in Australia in late 2005.
The mother was born in 1976 and according to the specific issues report at paragraph 10, is from Country B too.
The parties married mid-2005 and separated in April 2022. The parties were divorced in late 2023.
It is not clear on the material before me who initiated proceedings or when, but nothing turns on that for resolving these discrete issues.
PARTIES’ MATERIAL.
The father relied upon the following documents listed in the first of his two Case Outlines (and using his dates):
·Application in a Proceeding filed 19 August 2024;
·Affidavit of Mr Yates filed 19 August 2024;
·Specific issues report filed 2 October 2024.
In his second Outline of the same date, he relied upon:
·A Response to an Application in a Proceeding filed 23 October 2024 – this dealt with the mother’s Application in a Proceeding that a Family Report be produced before travel is considered and the father’s fiancé be included in that interview process. On 22 July 2024, a different Justice of this Court ordered the production of a specific issues report on the two issues in dispute – travel and choice of school;
·Affidavit of Mr Yates filed 21 October 2024.
The mother relied upon the following documents set out in her Case Outline (using her filing dates):
·Application in a Proceeding filed 16 September 2024
·Affidavit of Ms Quigley filed 16 September 2024
·Response to Application in a Proceeding filed 17 September 2024
·Affidavit of Ms Quigley filed 17 September 2024
·Specific issues report filed 2 October 2024
·Affidavit of Ms F filed 2 October 2023
The [mother’s] Application in a Proceeding fell away with the production of the specific issues report. The Application was not, understandably pressed.
I have the benefit of the specific issues report, which was released to the parties at the end of September 2024. The mother relied upon the Family Report by Ms F in May 2023, but the specific issues report is what the parties focused on.
LEGAL PRINCIPLES
The orders sought are parenting orders within the schema of Part VII of the Family Law Act 1975 (Cth) (“the Act”), where Aleandra’s best interests are the paramount consideration; s 60CA.
Section 60B of the Act sets out the objects of Part VII of the Act, and that is:
The objects of this Part are:
(a) to ensure that the best interests of children are met, including by ensuring their safety; and
(b) to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Section 60CC addresses best interests and provides:
(1)Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a)consider the matters set out in subsection (2); and
(b)if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3).
With respect to s 60CC(1)(b), X is not an Aboriginal or Torres Strait Islander child. I will come to s 60CC(1)(a) in due course.
So far as travel is concerned authorities such as Line & Line (1997) FLC 92-729 (“Line”) set out the kind of matters to which I would turn my mind in exercising my discretion to allow, or not, the child to leave the Commonwealth of Australia and holiday in Country B. I say more about those principles below. Suffice to say the child’s best interests are the paramount consideration.
Similarly, an Order with respect to the child’s schooling also fits within a parenting order contained in Part VII of the Act, with the child’s best interests being a paramount consideration. Cases such as Re G (Children’s Schooling) (2000) FLC 93-025 (“Re G”); Eden & Eden-Proust [2011] FamCAFC138 (“Eden”); Bilz & Breugelman [2013] FamCA 578 (“Bilz”) set out some matters that I might consider when exercising my discretion.
CHOICE OF SCHOOL
X has attended D School since preschool in 2014. She is now in grade 9.
The father proposes the child attend C School and it was said in submissions that he is being an advocate for her wishes.
The father and child attended the open day at C School in mid-May 2024. He says that after that in June 2024, the child expressed a wish to attend the school. She had asked about it earlier, but it was June when she began “earnestly inquiring about it”. Given the parties have what was called equal shared parental responsibility, it is a curiosity why the father would take her to the school prior to her making earnest inquiries about going there. No doubt that will be explored in the trial on this issue next year if the parties are unable to resolve their differences.
The father says the child does not feel supported by her maths teacher and other unidentified staff. He said the child was dismayed when a teacher was dismissive of her during a time that she was struggling to understand a mathematical problem. I do not know what the calls on that teacher’s resources were at the time.
At paragraphs 68 and 69, the father added:
68. I am concerned for her, that if she is starting to feel unsupported that her grades may suffer. Year 10 is a pivotal year of schooling and leads the pathway to a quality senior education.
69.I consider it vital to make any changes that may be necessary to assist in [X's] education sooner rather than later so that she is comfortable and can concentrate on her education and be supported adequately, by her parents and her educators.
With respect to support, I have no evidence that things would be qualitatively better at C School. For all anyone knows, the child may have another, say, a maths teacher at C School next year who does not give her the attention the child wants. I do not understand why change is vital – in an evidenced way – as said in paragraph 69.
The mother is opposed to the change of school, highlighting X felt isolated and alone when her friend left the school but has longstanding friends there.
School Discussion
I frame this discussion in terms of the s 60CC(2) factors.
(2)(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of: (i) the child; and (ii) each person who has care of the child (whether or not a person has parental responsibility for the child)
Section s 60CC(2)(a) is informed by s60CC(2A), but no one suggested, much less submitted, ss (2A) arises here, or is relevant to the discrete issue about schooling. Indeed, the parties agreed to equal shared parental responsibility and week about.
There is nothing before me to suggest either school would do anything but promote X’s safety as that is explained in s 60CC(2)(a). Or as was said in Bilz at 82:
… In particular, the process of evaluation should not entail an assessment of the relative merits of the schools preferred by the parties, at least in circumstances where the competing schools are prima facie satisfactory (Re G at [91]-[92]).
As a separate issue, I do not consider some friends leaving D School to fall within a safety issue (or lack thereof) – it is an exigency of life.
(b) any views expressed by the child;
The father deposed:
On or about June 2024, [X] expressed to me a desire to change school, occurring about the time of a close friend of hers leaving [D School]. She reported that this caused disruption to her friendship group, and she expressed to me fears of feeling lonely if she was to remain at the school. [X] had asked me about [C School] at [Suburb E] previously when driving past, but she began enquiring earnestly in about June of this year.
(Affidavit of [Mr Yates] filed 19 August 2024, paragraph 64)
X's feelings are perfectly understandable, but a change of school may not fix those feelings. It is also not unusual for a teenaged young woman to have altering friendship groups from time to time – they are all learning experiences.
The child’s views summarised by the father at his paragraph 86 have a simplicity to them: it may be that school is closer to the father’s unit so she can make her own way there, but it is (as conceded in submissions) further away from the mother’s house. So, the child’s travel to the father’s house will reduce, but increase when seeing the mother on the agreed week about.
I also cannot be confident that a new school, in and of itself, will make X feel more comfortable.
X said to this to the specific issues report writer:
[X] stated that she wants to attend [C School]. [X] explained that she has only ever attended [D School] and wants to experience “a change”. [X] was unable to elaborate. From what [X] said, the curriculum appears to be similar at both schools, however, [X] thinks that [C School]would support her better academically because it was “smaller” with about “[600] students”. [X] said that she has done research online and attended the school open day. [X] said that she does not make friends easily but was motivated to make an effort to socialise and form new social networks. [X] said that her friend recently started a new school and has enjoyed the experience.
(Specific issues report filed 2 October 2024, paragraph 8)
X is aware her mother wants her stay at D School and the father wants her to go to C School. It is hard to see X is invested in going to C School when she told the [specific issues] report Writer:
… she would feel “normal” if Court orders were made that did not permit her to attend [C School].
(Specific issues report filed 2 October 2024, paragraph 9)
There is a dispute about the school’s size, which I cannot resolve today. What I can say is that it is common ground that C School is smaller than D School.
At the end of the day, I am well aware of X’s views and factor those into my consideration of the child’s future schooling.
(c) the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs ;
(e) the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;
These do not arise in terms of choice of school. The parents have settled upon a best interests order where X shares her time between her parents. They are each saying, by that final consent order, the other parent is a good enough parent to meet the child’s needs. No none is saying the other school is a poor choice.
(f) anything else that is relevant to the particular circumstances of the child.
The father says D School is 18 minutes from the mother’s house and 44 minutes from his. X has always gone to that school – the parents then chose where to live post-separation knowing that.
The mother says C School is a matter of metres from the father’s home, but over an hour trip from her house to the school, plus “a further 50 minutes for me to get to work” (Affidavit of Ms Quigley filed 17 September 2024, paragraph 57). I do accept the father’s counsel’s concession that travel for the child to go and from the mother’s house will increase (he said slightly) if she went to C School.
X said in the Specific issues report at paragraph 5, X estimated:
that the travel time to school from her mother’s home is between 20 to 25 minutes, and between 35 to 55 minutes from her father’s home. [X’s] mother drops her off to school and she generally catches the bus home. Her father drops her off and collects her from school. Should [X] attend [C School], [X] said that this school is [close to] her father’s home, and she thought about between 40-45 minutes from her mother’s home.
(Specific issues report filed 2 October 2024, paragraph 5)
It seems common ground that C School is closer to the father’s unit and further away from the mother’s. Not much turns on this on this interim basis.
The father also says C School is more than half the cost of D School. But the parents must have been well aware of the costs of D School given they enrolled her there many years ago and have kept her there for the better part of a decade. The mother is suspicious that father wants to reduce his outgoings given his new fiancé and the costs of bringing her from Country B, but that is not a matter I can determine on this interim basis.
The parties also express concern for the child’s absences from school. I do not know how or if a change of school would cure or improve that, or even the reasons (and I don’t mean the school’s coded reasons for absences) of the parents’ circumstances for any of the 49 absences in 2024 so far.
Matters such as Re G, Eden and Bilz to which I have earlier referred make it plain that (per Austin J’s useful summary in Bilz at [81]-[82]):
Schooling disputes are not resolved by application of a “blanket presumption” or preference for the views held by the residential parent (Re G at [29], [45], [65]). The court is required to apply the objects and principles of Part VII of the Act and to consider the statutory criteria in forming conclusions about the child’s best interests (Re G at [66]–[68]).
That is probably self-evident, but other more generalised observations were made by the Full Court. In particular, the process of evaluation should not entail an assessment of the relative merits of the schools preferred by the parties, at least in circumstances where the competing schools are prima facie satisfactory (Re G at [91]-[92]). Ordinarily, it will be in the child’s best interests to attend a school close to his or her residence and further, it is proper to consider evidence as to any greater effect of the decision upon the resident rather than non-resident parent(Re Gat [92]-[93]), but that does not mean the convenience of the non-resident parent is ignored (Eden-Proust at [56]-[63]).While the views of the child are relevant to the inquiry, ass 60CC(3)(a) of the Act now stipulates, those views are usually not determinative. That is because, unless a child is actively unhappy in a particular school environment, it is not at all unusual for the child to express a desire to remain at his or her existing school (see Re G at [96]).
It is also not unusual for a child to also express a view that change might be nice, but without much understanding of whether that will occur in all likelihood or not occur.
In any event it is clear a child’s view are not determinative; (Bondelmonte v Bondelmonte (2017) 259 CLR 662.
Finally, I accept the Writer’s opinion set out below:
Although [X] expressed a clear wish to attend [C School], statements she made about her rationale for this appeared somewhat vague and impulsive and she appeared to be ambivalent about the outcome. It is developmentally normal for an adolescent of [X’s] age to act impulsively. [X’s] wish to experience change could be viewed positively and as a normal part of her development. Further, as change is a normal part of life, it is important to learn how to manage it. Navigating a change of school, particularly in a supportive parenting environment, will likely help [X] to develop a strong sense of self and promote resilience. However, [X] has attended [D School] from when she first started kindergarten. This is the only school she has known, and she has an established social network. Additionally, [X] suggested that she does not make friends easily. [X] also appears to struggle academically. Therefore, it is not known how [X] would adjust to changing to a new school. There is a risk that it may not be a positive experience for her and may have implications for her sense of confidence, learning, social development and potentially her career path.
(Specific issues report filed 2 October 2024, paragraph 13)
School disposition
I accept the specific issue report writer’s opinions just set out above, because both the father’s evidence and what is attributed to the child speak to hope about things being better, something akin to ‘the grass is greener on the other side’ approach.
I am also not satisfied the child’s feelings about her current school and friends would be more likely than not be better or enhanced at C School. It is also impossible to predict whether she will make friends at C School or have different friends with different people as seems to be the case at D School.
Accordingly, the father has failed to persuade me that a change of school is in the child’s best interests.
TRAVEL TO COUNTRY B
It is common ground that X’s heritage includes a Country B heritage through her parents, at least that is what the child says of the mother in the specific issues report at paragraph 10.
It is common ground that Country B is a Signatory to the Hague Convention on the Civil Aspects of International Child Abduction.
During their relationship, the parties travelled with the child to Country B, and it would seem in 2014, 2016, 2019, and spent time with the paternal family. The paternal family have also come to Australia and spent time with the mother, father and child.
It is common ground that X has not been able to have an experiential relationship with the paternal family in Country B for about 5 years or so.
The father says the child understands and speaks the language of Country B. The mother say she has colloquial and basic Country B language. She attends weekly Country B dancing classes; that is where the parties do their changeovers.
The child also engages with her paternal grandparents and cousins in Country B by phone, FaceTime and other social media platforms. According to the mother, she calls the paternal grandmother and the paternal grandfather by nicknames. Of her cousins, the father says one is the closest, which is no surprise given the girl is 18 years old and X almost 15.
The father says the paternal grandfather is ill yet does not propose to travel until mid-2025. It would not seem urgent whatever the health issues may be. The mother says the paternal grandfather is now much improved. Either way, the child seeing a sick grandfather or seeing a well or improved grandfather has benefits for her. Indeed, it might be thought seeing an improved grandfather, as is the mother’s case, would enhance X’s opportunities to engage with the part of her identity that the paternal grandfather and paternal family represent.
The father highlights (and the mother agrees) the parties when together travelled to Country B with the child, including for 6 weeks for a family wedding in 2019. The father says the mother did not object then or earlier times, but they were of course in an intact relationship.
In her Case Outline the mother made a range of interesting submissions as to why I would not allow the child to travel via including:
3. The mother's position is that [X] is Australian and it is important to protect her Australian heritage and way of life.
(Case Outline of [Ms Quigley] filed 23 October 2024)
I do not see how two weeks in Country B would have that consequence. The parties travelled with the child when together and that could not have therefore been a disentitling concept. Instead, X has the advantage and benefit of rich cultural heritages - plural.
4. The mother acknowledges that it is in [X's] long term best interest for [X] to have the cultural experience and contact with her [Country B] family.
5. The mother contends that when [X] was last in [Country B] she was [nine] years of age and very much under parental protection.
(Case Outline of [Ms Quigley] filed 23 October 2024)
The first dot point is patently true, yet in her affidavit the mother denies the child has a close relationship with her paternal grandparents, and cousins and whatever form of relationship exists is one from FaceTime. One way for a relation to grow beyond FaceTime is to have face to face, experiential time.
It is hard to accept that when the parties have entered into week about orders and equal shared parental responsibility that the mother can say the father would place the child at risk of harm, which must be the corollary of the second dot point to which I have just referred.
8. The mother remains concerned the capacity to care for [X] will be diminished in the father's current circumstances.
(Case Outline of [Ms Quigley] filed 23 October 2024)
Yet, they have orders for week about and equal shared parental responsibility with each therefore saying the other is a good enough parent. There is no evidence before me that the father’s new fiancé poses an unacceptable risk of harm to the child.
9. The mother says on balance it is only three years until [X] is 18 years of age. By then she will be better prepared to accommodate travel to [Country B] and as an adult woman, on her own terms, with the benefit of a further three years of being able to infuse her with all the skills necessary for that time.
(Case Outline of [Ms Quigley] filed 23 October 2024)
Respectfully, I do not what that actually means – it was good enough for the child to go with both parents to Country B when together. The father seeks an opportunity for the child to do so again, but with him.
10. The mother is realistic that [X] will experience a full-time stepmother, who will become significant in her life, and the mother says she has no idea whether or when [X] will be safe in a new environment.
(Case Outline of [Ms Quigley] filed 23 October 2024)
Given the final consent, and what therefore says about the other being a good enough parent and making good enough choices for the child, I do not know what that submission means in any substance beyond just “some concerns”.
Travel Discussion
I again frame this discussion in terms of s 60CC(2).
(2)(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of: (i) the child; and (ii) each person who has care of the child (whether or not a person has parental responsibility for the child)
As said, s 60CC(2)(a) is informed by s60CC(2A), but no one suggested, much less submitted, ss(2A) arises here, or is relevant to the discrete issue about travel. (2)(a) is of course about the parents.
The mother however highlights in written submissions that:
[Country B] is a country riddled with corruption and social shortfalls and inequities, which [X] is now old enough to be aware of.
The mother submits that [Country B] is not a safe place and she remains concerned that [X] might normalize [Country B] social behaviours which are not in her interest, and may lead to conflict with Australian values.
(Case Outline of [Ms Quigley] filed 23 October 2024)
Yet it was good enough for them to go to Country B several times with the child when together. In any event, I am not prepared to find that another sovereign nation is corrupt such that it means a young woman cannot go there for two weeks with her father and to be with wider family. I also do not see how two weeks with paternal family would lead to a conflict with Australian values.
The mother also highlighted her “real concern” that the father will stay in Country B and spirit the child away. The mother said the father made such threats from when X was a little girl and specifically in 2014, when she alleged the father said, “"I'll take her on my own and if I take her, you will never see her again" (Affidavit of Ms Quigley filed 17 September 2024, paragraph 40). The parties travelled to Country B twice more after this, and that would have been an opportunity for the father to act on his apparent threats and involve his alleged network of friends and contacts to spirit the child away. He did not do so.
I will also deal with this concept of risk when I consider the authority of Line below.
(b) any views expressed by the child;
In the specific issues report, X was clear on wanting to go to Country B and unlike her views about changing school, was able to give meaning and content to her reasons and with the paternal family being known to her; I refer to paragraph 11 of that report.
(c) the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
I do not see how a two-week trip to see family in Country B would impact on the child’s developmental, psychological or emotional needs. I also do not see how the proposed travel to see family indicates any kind of detriment on the part of the father’s capacity to parent.
I have already referred to some of the mother’s sweeping submissions which touch on cultural issues and do not need to repeat them here.
(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
FaceTime and phone calls are one kind of relationship, but there is something more connecting and enhancing for a child’s relationship to grow with wider family, through a hug, a shared meal, a walk down an interesting lane – experiential time. I accept the father’s submission where he says:
Travel to [Country B] will provide the child the opportunity to connect with her paternal grandfather and family. Thereby fostering and strengthening their close family connection.
Further, the child will be provided an opportunity to be emersed in her culture with her family. This will promote and develop her sense of culture, identity and connection to he [Country B] heritage.
(Case Outline of [Mr Yates] filed 23 October 2024)
(f) anything else that is relevant to the particular circumstances of the child.
In Line at paragraph 4.49 it was said:
4.49.The next matter is the degree of risk that the departing parent, once permitted to leave Australia, will, despite assurances to the contrary, choose not to return. In assessing that degree of risk, obvious considerations are the existence (or otherwise) of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here), the existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues) and the existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there).
The father lists his connections to Australia as:
My connections to and with Australia include the following:
a.I operate a business in Australia and have established referral networks for new work contractors and suppliers.
b.At the time of swearing this Affidavit my intended future spouse is visiting Australian from [Country B] pursuant to a Spouse Visa. We intend to marry and make our life and future in Australia after she in granted permanent residence. I have so far expended $8,973.90 for a prospective marriage visa application to make this happen. I have also paid $2,000 to an immigration agent for thei fee as well as air fares and travel insurance of $3,700.00.
c.[X] was born in Australia and is an Australian citizen. This is her home.
d.I am an Australian citizen.
e.I am aware of the blessings living in Australia provides. I am aware and enjoy the benefits of stable government, access to justice and the rule of law, individual freedom and protection with exceed those available to me in [Country B].
f.I have developed friendships.
g.I maintain connection with my [Country B] culture and meet together with other [Country B people] here in Australia. I am enmeshed in that community in Australia. For example, through sport, art, friendships and have been a member of this community since I moved to Australia.
(Affidavit of [Mr Yates] filed 19 August 2024, paragraph 48)
In his second affidavit, the father deposed that his Country B fiancé will accompany them back to Australia (if allowed to travel) and marry at a convenient date. The mother takes issue with the fiancé – she has never met her, and it must be though that the father has not introduced her or made such an offer either. But the implication of the Consent Orders is that each parent trusts the other to make good enough decision that do not put the child at risk. It is a long bow to draw and lacking evidence that the father’s decisions to re-marry puts the child in harm’s way.
The mother denies the father’s connections and says the father much prefers involvement with his Country B friends in Country B but also his Country B friends in Australia. I highlight “in Australia”. It was also said the father has sent considerable monies to Country B, but it was then submitted that that was for the property proceedings.
The mother leapt on what the child said of the father at paragraph 10 of the specific issues report – “he has told her that he will stay in Australia “until I am 18” (the child 18). X “did not know” where her father intended to live after this” (specific issues report filed 2 October 2024, paragraph 10). I do not see that as demonstrating anything disentitling for this proposed holiday from the child’s report. Rather what it says to me, is that the father intends to actively parent X and be involved in her life until she turns 18 when is she is free to do what she wants to do. What he does after that is a matter for the father and his then adult daughter.
I am satisfied the father has connections here and values the child’s Australian life and life in Australia.
It should also not be forgotten that X is almost 15. Whilst not ideal, she identifies her own self-help solution if the father sought to keep her:
[X] said that if her father attempts to retain her in [Country B], she will “probably get a flight back to Australia” herself.
…
[X] was clear that she wants to live in Australia. [X] said that she will take her computer with her on holiday and complete her schoolwork.
(Specific issues report filed 2 October 2024, paragraph 12)
She has the means of communication.
As said, this is not ideal but the child is aware of the mother’s concerns, thought about it, wants to go on the holiday anyway and has thought through her own solution.
When I look at Line at paragraph 4.50, Country B is a Hague Convention country but of course that does not discount the fact that any parent could use the proposed destination country or a stopover country to go to a non-Hague country. It is some comfort though that Country B is a Hague Convention country.
When I look at Line at paragraph 4.51, I know little about the parties’ finances but will set out what I am told when I consider a bond below, the point of which also comes from Line:
(a) to provide a sum which will realistically entice the person removing the children to return; and
(b) to provide a sum to adequately provision the party left in Australia to take action and proceedings in Australia and overseas in an endeavour to obtain the return of the children.
The father deposed he cannot afford a bond along with the costs of travel that he wishes to embark on, but said in submissions that if a bond was required then $15,000 would be the sum.
The mother sought $50,000 in her material and $40,000 from the bar table. I have no evidence how she arrived at those sums. If the child was retained, her costs would involve flights for the mother to go to Country B if she wishes, some accommodation and perhaps legal advice, but that is in the context of Country B being a Hague country.
The mother has not satisfied me that the sums of $50,000 or $40,000 meet the factors set out in (a) and (b) from Line, especially (b) above. The currency of the Court is evidence, and she has none.
However, I will order a bond and take the amount proposed by the father if one was required. I do so to give the mother some comfort that this amount will meet (b) above, and, with respect to (a), when the father says he cannot afford to pay a bond or prefers not to, then the sum that he proposed (if one was required) will entice his return. I also do so given the father has travelled overseas post separation, paid more than $100,000 in legal fees and it is said he has paid $15,000 towards a fiancé visa.
The other security the mother has is that by dint of the parties’ choices not to have a final hearing on these two disputes at the end of this week, the matter will remain in Court until it is listed for trial in August 2025 – that is after the father’s travel dates. I have no doubt that if the father does not return with the child, the mother will enliven a Hague application if able to, and also look to change the parenting orders on the basis a non-return would be (on her case) a material change in circumstances.
Travel disposition
The mother asked in submissions, “what’s the fruit of the travel?” That fruit ought be evident – for the child to enjoy and develop bonds with the paternal family unconstrained by Face Time or other social media limits but with the bonus and benefit of face to face time. In similar vein, I accept the expert’s opinion, which is itself a good answer to the mother’s question:
It is important for [X] to remain connected to her family and to her culture for her sense of identity and belonging. Spending time in [Country B] would be invaluable for this.
(Specific issues report filed 2 October 2024, paragraph 14)
I accept that because it is a matter of common sense.
I am satisfied it is also safe for the child to go to Country B for two weeks - and I mean the safety of the kind that the mother put in her Outline to which I have already referred. I will however order a bond, really for the mother’s comfort in terms of those two matters I have already addressed in Line.
I am also not satisfied that two weeks in Country B will do anything untoward to the child’s “Australia values” (as the mother called them) but give her the opportunity to spend a little time in a country where she has cultural and familial links which thereby go to her very sense of understanding her rich and diverse identity.
ORDERS
For those reasons, I will make the travel orders largely proposed by the father. Although I observe the mother had very similar travel orders if I was against her on the travel issue.
Looking at the father’s Case Outline filed 23 October 2024, I will:
·Make Order 1, but insert the dates of two periods in mid-2025 after the words “overseas to [Country B]” and before “provided that”;
·I will make order 2;
·I will not make order 3 – the hearing yesterday centred on specific dates for travel in mid next year, not yearly travel as proposed by the mother or twice yearly proposed by the father. The parties will have a trial about that in August 2025 if they ca not resolve their differences;
·I will make the father’s Orders 4-7 – but on Order 7 the father proposed he retain the passports, but the mother proposed she hold the passports for six months, then the father hold them for six months. In other words, she has no problems with the concept of the father holding the passports, but just, it seems, wants equality. I will make the father’s order on an interim basis as he is the only one proposing travel at the moment. The parties can tell me about this at trial in August next year if they ca not work out their difference between now and then;
·I will make Orders 8 and 9.
Looking at the mother’s Outline now with respect to the bond, being her Order 13 in her Outline of 23 October 2024, I will make a bond but in the sum of $15,000. I have heard the parties on the form of the Order and subject to my satisfaction, Mr Madsen is going to send through, after consulting with Mr Clark, an Order which better works for him to hold monies on trust for both [parties] in terms of how it is released to the father on his return, or, how it is given to the mother if the child is not returned. I would be grateful if that could be done by close of business end of this week.
I will otherwise dismiss the parties’ Applications in a Proceeding, including the father’s orders for a change of school. I am alert that in both the Applications in a Proceeding, the parties sought costs and that is also in their Outlines.
If the parties want to spend more money on litigation and press an application for costs, then they can do it in the usual way under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, including rule 12.13.
The time for any such application and affidavit will be 14 days from today and any affidavit is to include a precise calculation with particulars on how such sums sought are calculated and include a calculation on how costs were allocated between travel and choice of school.
If no such applications are made within 14 days, then the Applications in a Proceeding with respect to costs will be dismissed.
In considering whether to apply for a costs order, the parties are to consider s 67 and 68 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and s 117 of the Family Law Act 1975 (Cth).
I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 1 November 2024
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