REICHSTEIN & REICHSTEIN

[2011] FamCA 382

FAMILY COURT OF AUSTRALIA

REICHSTEIN & REICHSTEIN [2011] FamCA 382

FAMILY LAW - CHILDREN – application by the father seeking orders permitting him to travel overseas with the children – where the mother alleges that the father does not intend to return to Australia with the children – where the father has offered $50,000 security to be payable to the mother if he fails to return with the children – best interests – orders that the children be permitted to travel overseas with the father

Family Law Act 1975 (Cth) s 60CC

Marvel & Marvel (No 2) (2010) 240 FLR 367

APPLICANT: Mr Reichstein

RESPONDENT: Ms Reichstein

FILE NUMBER: ADC 1379 of 2011

DATE DELIVERED: 19 May 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 19 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: n/a

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Noble

SOLICITOR FOR THE RESPONDENT: Moody Rossi & Co

Orders

1. The children J born on … August 1994 and V born on … April 1998 be permitted to travel overseas with the father between 30 June 2011 and 23 July 2011 upon the following conditions:

(a)within seven [7] days from today the father provide to the mother’s solicitors a complete detailed itinerary for travel and accommodation including addresses and if available telephone numbers, copies of all flights, tours and accommodation already booked;

(b)within seven [7] days of any other bookings provide copies of same to the mother’s solicitors;

(c)within twenty-one [21] days the father provide to the mother’s solicitors signed mortgages in registrable form over the titles to the real estate at:

(i)   … M Street, Adelaide Suburb 1 in the State of South Australia;

(ii)  … E Street, Sydney Suburb 1 in the State of New South Wales;

being a mortgage of FIFTY THOUSAND DOLLARS [$50,000.00] secured for the benefit of the mother payable on 1 August 2011 and to be discharged in full by the mother upon the return of both children to Australia by 1 August 2011 or other orders of this Court;

(d)at the time of providing the said mortgage the father shall also provide to the mother’s solicitors copies of up to date accounts of all other mortgages or charges secured over the said real estate;

1. The mother forthwith and within seven [7] days sign all documents and take all steps necessary to obtain passports for both children on the basis that thereafter the mother’s solicitors shall retain the passports of the children until the father complies with the conditions in paragraph 1 and upon compliance with paragraph 1 the passports are then to be provided to the father PROVIDED THAT the passports for the children are to be returned to the Registry Manager of this Court by 1 August 2011 and thereafter retained and to be released on written consent of both parties or further Court order.

1. Within twenty-one [21] days the father provide to the mother’s solicitors confirmation from the children’s school that arrangements have been made for both children to complete any tests or exams required by the school to be completed during the children’s absence from school.

1. The father is to ensure that both children telephone the mother on the mother’s landline telephone number (to be provided to the father) at least once each week during the children’s absence overseas.

1. Liberty is given to both parties to apply for any consequential orders.

1. The orders of the Court are suspended as far as the children spending time with the mother during the period from 30 June 2011 to 23 July 2011.

1. All other outstanding proceedings are adjourned to a Registrar for directions at a date to be listed after the 1 August 2011.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER:  ADC 1379 of 2011

Mr Reichstein

Applicant

And

Ms Reichstein

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an application by the father filed on 14 April 2011 in which the father seeks urgent orders permitting him to travel overseas with the two children of the relationship between 30 June 2011 and 23 July 2011. 

2. The parties have previously been engaged in considerable litigation in relation to both financial matters and children’s matters.  The children the subject of the proceedings are the two daughters, J, who was born in August 1994, who is therefore 16, going on 17, and V, who was born in April 1998, who is therefore 13. 

3. The father has filed an application and a supporting affidavit indicating his desire to travel with the children overseas to Europe.  The mother has filed a response to the initiating application in which she opposes the orders sought by the father and further seeks to vary the orders which were made providing for the children to live with each of the parties by making specific new arrangements. 

4. Those latter matters are not agitated before me today and will be adjourned to a Registrar at a date to be fixed in order that the usual processes can be undertaken, in particular with a view to possibly ascertaining if any further agreement can be reached in relation to those matters.

5. The matter that is before me today that needs to be determined is the question of whether the two daughters should be permitted to travel overseas with the father in the next few months. 

6. The father sets out his proposals which on the face of it could be considered to contain nothing of any great significance other than that there is a possibility that the father and children would have an opportunity to enjoy spending time together travelling overseas. 

7. The mother’s affidavit in response, however, raises serious issues about the intention of the father to return to Australia with the children.  In the affidavit, she alleges that the father has in the past threatened to leave Australia with the children and that the mother would not see them again. 

8. The specific matters were referred to by counsel for the mother in his detailed submissions to me.  This raises the need to consider the possibility of there being a risk that the relationship between the mother and the children might come to an end if the father did not make appropriate arrangements for the return of the children. 

9. In considering those matters, however, the uncontested facts that are significant are the ages of the two daughters, nearly 17 and aged 13, and the difficulties which would be inherent in not making arrangements for their return, bearing in mind that they have always resided in Australia, are currently attending school and have all their social arrangements in Australia. 

10. On the contested matters on the material before me I am not able to make a particular finding as to the truth of the allegations of either the father or the mother, but in relation to the more recent authorities and in particular Marvel & Marvel (No 2) (2010) 240 FLR 367 I have to consider the contested facts in light of the uncontested facts.

11. It is also significant that the mother alleges that in the past, the father has not obeyed the Court orders.  She therefore puts this forward as another basis upon which the Court should have concern about the return of the children.

12. When considering what orders to make the Court is bound to consider the Family Law Act 1975 (Cth) (“The Act”) and the provisions of that Act. The paramount consideration is the best interests of the children. Although there are detailed provisions in the Act covering many things, there is no specific reference to seeking permission to travel overseas.

13. The legislation, of course, clearly does provide that the principles to be applied by this Court include the need to protect the rights of the children and to promote their welfare and the means available to the parties to assist them in reaching agreement.  Unfortunately it has not been possible for the parties to reach any agreement in this matter, particularly in relation to the travel overseas. 

14. The provisions of the Act also highlight the benefit to the children of the parents being able to reach agreement about matters concerning their welfare, but that has not been possible in this case either.

15. Therefore it is necessary to turn to those matters which is necessary for the Court to consider when determining what is in the best interest of the children.  Those provisions are set out in section 60CC.  The primary considerations are:

    (a)the benefit to the child of having a meaningful relationship with both of the parents;  and

    (b) the need to protect the children from physical or psychological harm.

16. In this case, the most significant one is the benefit to the children of having a meaningful relationship with both parents.  The mother has raised a significant issue;  if there is a real risk that the children would not be returned to Australia and therefore denied an ongoing meaningful relationship with the mother.

17. The additional considerations include the specific matters set out in subsection (3).  The most relevant of those for this purpose are:

    (a)any views expressed by the children and any factors ... relevant to the weight to be given to the children’s views

18. It appears on the face of the submissions to me this morning that both children wish to travel with their father overseas.  Considering the ages of the children, those views should be taken into account but would not of themselves simply offset the concerns of the mother about any breach of her ongoing relationship with the children.

    (b)the nature of the relationship of the children

19. This is not a factor that is contested in this matter.  The orders that have been in place for some years now provide for a shared care arrangement.

    (c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

20. The mother has a concern about what she asserts to be the father’s lack of willingness.

    (d)the likely effect of any change

21. In the children’s circumstances this is not a relevant factor if, indeed, arrangements are made to ensure that both children are returned to Australia and resume their normal arrangements.

    (e)      the practical difficulty and expense

22. Spending time is not a factor save and except that if the children were permitted to travel overseas, the mother seeks that arrangements are made so she can communicate with them on a regular basis.

23. The other factors set out in the provisions of section 60CC are not particularly relevant, save and except subsection (g):

    (g)the maturity, sex, lifestyle and background ... of the child and ... the parents, and any other characteristics.

24. The maturity of the children in this case is a significant factor, and I have already referred to that under other subsections. 

    Subsections (m) says:

    (m)any other fact or circumstance that the court thinks is relevant

25. Under this heading I therefore refer to the schooling and education of the children, an issue which the mother has raised.  There is some inconsistency in what exams or tests might be missed by the children, should they be permitted to leave Australia on the dates proposed by the father. 

26. The father tells the Court from the bar table that a substantial number of bookings have already been made for the travel and that he can provide that information to the mother through her solicitors. 

27. One of the significant primary considerations is maintaining a meaningful relationship with both parents.  It is possible in this case to provide the security to the mother to the extent that the father has offered to secure his real estate properties to the extent of $50,000 which would be payable to the mother if he was to fail to return with the children.  Those funds would then become available to the mother to take necessary steps to secure the return of the children to Australia and otherwise be defaulted to her if the father does not comply with the proposed orders. 

28. The travel overseas for the children at this age and the places which the father is proposing to take the children on the face of it seem to offer a significant benefit by way of enjoyment and education for the children.  The Court must therefore weigh that benefit to the children themselves against the concerns of the mother for their return. 

29. Weighing all of the factors up, the Court is of the view that it is in the best interests of the children that they be permitted to travel overseas with the father provided the appropriate arrangements are made to secure the return of the children to Australia. 

30. I have allowed an extra few days in the return date to overcome any possible difficulties with international travel not caused by the father.  That is not an indication that the order is extended to 1 August 2011 but it does not permit the security to be enforced until 1 August 2011.

31. I am not making any specific order in relation to the provision of mobile telephone numbers, but if the mother chooses to make available a mobile telephone number to the children at her cost, no doubt they will use it in accordance with the instructions the mother gives them.  I am not making any orders about that. 

32. In relation to those orders, I give liberty to both parties to apply for any consequential orders in case there are any difficulties. 

33. By implication, I think that suspends the orders of the Court as far as the children spending time or living with the mother is concerned during the period of 30 June 2011 and 23 July 2011.  I refer the other outstanding proceedings to a Registrar for directions, and that date to be after 1 August 2011.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 19 May 2011.

Associate: 

Date:  27 May 2011