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…
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CaseChat Overview and Summary
The primary legal issues before the court were whether the child should be permitted to travel overseas for two weeks to visit the father's family in Country B, given that it is a signatory to the Hague Convention, and whether the child should change schools. The court had to weigh the potential benefits of the overseas visit against the mother's opposition and assess if a change of school would be in the child's best interests.
In delivering the judgment, the court held that the child should be permitted to travel to Country B to visit her paternal family, subject to certain conditions to ensure her safety. These conditions included restrictions on travel to countries with high travel advisories, the provision of a detailed itinerary to the mother, and the requirement for the father to deposit a bond to be released upon the child's safe return. The court found that the benefits of the overseas visit outweighed the risks, and the mother could compensate for the time lost through make-up time. However, the court dismissed the father's application for a change of school, finding that it was not in the child's best interests at this time.
The court also addressed the issue of costs, reminding the parties of the provisions in sections 67 and 68 of the Federal Circuit and Family Court of Australia Act 2021 and section 117 of the Family Law Act 1975. The court required any application for costs to be supported by a detailed affidavit particularising the costs and their allocation between the travel and school applications. If no such application was made within 14 days, the court would dismiss the applications for costs.
Orders
Orders of the court
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 www.smarttraveler.gov.au 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.
Background
Background to the litigation
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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