Rennoll & Rennoll

[2024] FedCFamC1F 475

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Rennoll & Rennoll [2024] FedCFamC1F 475

File number:

SYC 2902 of 2023

Judgment of:

ALDRIDGE J

Date of judgment:

12 July 2024

Catchwords:

FAMILY LAW – PARENTNG – Application for interim orders to permit the mother to travel overseas with the children – Proposed travel is of real benefit to the children – No significant risk to the children in allowing the travel – Destination country is a party to the Hague Convention – Where the mother’s connections to Australia and the proposed monetary bond ameliorate any risk of non-return – Application allowed.

Legislation:

Hague Convention on the Civil Aspects of Internation Child Abduction art 13

Cases cited:

Kuebler and Kuebler (1978) FLC 90-434; [1978] FamCA 26

Line v Line (1997) FLC 92-729; [1996] FamCA 145

Division:

Division 1 First Instance

Number of paragraphs:

32

Date of hearing:

12 July 2024

Place:

Sydney

Counsel for the Applicant:

Dr Leslie

Solicitor for the Applicant:

SCB Legal

Solicitor for the Respondent:

Coleman Greig Lawyers

Solicitor for the Independent Children’s Lawyer:

Steiner Legal

ORDERS

SYC 2902 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS RENNOLL

Applicant

AND:

MR RENNOLL

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	ALDRIDGE J
DATE OF ORDER:	12 JULY 2024

THE COURT ORDERS THAT:

1.For the purposes of s 65Y of the Family Law Act 1975 (Cth), the mother is permitted to take the children X born 2014 and Y born 2017, outside of the Commonwealth of Australia during the period of 15 July 2024 to 31 August 2024.

2.The Australian Federal Police are directed to remove the names of the children X born 2014 and Y born 2017 from the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia for the period 15 July 2024 to 31 August 2024.

3.The mother provide to the Independent Children’s Lawyer and the father a copy of hers and the children’s return airplane tickets between Australia and Country B no later than 12 hours prior to departure.

4.By 15 July 2024, the mother shall pay a security bond in the amount of $50,000 (“bond”) by way of bank cheque or electronic transfer of cleared funds into the trust account of the father’s solicitors.

5.Proof of payment of the bond may be demonstrated by the mother producing a copy receipt of lodgement of the bond, certified by the father’s solicitors, and it is requested that the father’s solicitors provide such certified copy to the mother as soon as practicable after she requests it.

6.The bond shall be disbursed as follows:

(a)It shall be repaid to the mother in full within five business days of her return to Australia; or

(b)To be paid as directed by the Court upon such an application being made by the father in relation to any non-return or non-compliance by the mother.

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 the pseudonym Rennoll & Rennoll has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

ALDRIDGE J:

1. This is an application by Ms Rennoll (“the mother”) for orders which would enable her to take the parties two children, X aged 9 and Y aged 7, to Country B for six weeks. The application is opposed by the father, Mr Rennoll (“the father”), but is supported by the Independent Children’s Lawyer (“the ICL”).

2. The ICL proposed a Minute of Order which was ultimately adopted by the mother in lieu of her proposed orders. It is slightly more detailed than the mother’s but, importantly, increased the amount to be paid by the mother as security for the return of the children to $50,000.

   BACKGROUND

3. The mother and the father were each born in Country B. They have lived in Australia for many years and are each Australian citizens. It appears that each of their respective families have remained living in Country B.

4. The parties’ relationship commenced in 2001. They were married in Country B in 2011.

5. In 2015 the parties and X spent a number of months in Country B. In 2017 the family moved to Country B, intending to stay permanently, but returned to live in Australia in 2018. The family spent another period of time in Country B between 2021 and 2022.

6. After separation, the family travelled to Country B in 2022. The parties travelled together but stayed apart with their respective families.

7. The parties’ parenting proceedings have been fixed for final hearing in December 2024. In those proceedings the mother is seeking orders that she and the children return to live in Country B.

8. In early 2024 the father was charged with a number of offences of violence against the mother. The hearing of those charges is part heard and will resume in late 2024. The mother is in the course of cross-examination in those proceedings.

9. Court orders were made on 5 July 2023 providing for the children to spend supervised time with the father. As will be discussed shortly, that time did not go well. An Apprehended Domestic Violence Order was made at the time the father was charged with the criminal offences which prevented any contact between the father and the children. In 2024 the mother advised the police that she would consent to the Apprehended Domestic Violence Order being varied so as to permit the father to see the children. That consent has not been followed up and the children have not spent time with the father since late 2023.

10. The children currently see a family therapist fortnightly and the mother proposed that that therapy would continue remotely if she is permitted to take the children on the holiday.

11. The supervised contact reports show that the children were reluctant to spend time with the father. It seems that the children, at least, are of the view that in 2022 the father agreed that the mother and the children could return permanently to Country B. There are emails from the father suggesting that he did in fact consent, but he now says that those emails were not to be taken seriously. However, the children remain of the view that the father is preventing them from returning to Country B which they are very keen to do. That has led to a reluctance to see their father which seems to be a significant stumbling block in reestablishing a relationship between them and their father.

12. This was also a theme of the children’s discussion with the psychologist who has prepared a Family Report in this matter. X told the psychologist that the father was “mean” and “a liar” for not letting them return to Country B. Y too spoke of the father not letting them return. These are strongly held views by children under 10 years of age and suggest that they may have been exposed to far too much adult considerations, but that is where they presently stand.

    THE PREVIOUS APPLICATION

13. This matter was brought on for hearing urgently but there is little in it that is in fact pressing. However, there was no application that it be adjourned to the final hearing in December so it falls to be determined on its merits.

14. On 28 June 2023, Judge Neville dismissed an application by the mother to travel to Country B with the children. As ultimately framed, that trip was also to be for a number of weeks. Her Honour found that the risks of the mother not returning to Australia with the children outweighed the benefits of any travel.

15. I was initially concerned that there had not been a significant change in circumstances to justify a further application seeking the same interim relief. Whilst interim applications may be remade repeatedly, such renewed applications are generally regarded as vexatious and oppressive unless there are circumstances that have changed materially since the last hearing. I am, however, satisfied on balance that sufficient has changed to justify the application.

16. The mother’s dental work has deteriorated. Whilst the evidence was not direct and does not include any expert evidence, it was sufficiently cogent to establish a reasonable basis for a return to Country B. The mother had dental work done there on her last visit. The work was not able to be completed and has now deteriorated. The work done is not compatible with dental work in Australia and repair here would be extensive. A dentist in Country B has looked at the x-rays provided by the mother and has advised that he can readily restore the condition and finish the work without it being as extensive.

17. I note that the father cannot complain too much about medical treatment in Country B. He is presently there for surgery having had his bail conditions varied to permit him to travel to do so.

18. The mother’s brother is being married in mid-2024. It is not clear from the evidence when the wedding date was chosen but even if it was some time ago, it remains a significant family occasion.

19. In addition to being enrolled in school in Australia, the children are enrolled in school in Country B. The trip proposed by the mother will permit them to attend their annual examinations in person and meet their school friends.

20. I do not accept, however, that any increase in the security deposit counts as a relevant change in the circumstances.

    THE CURRENT APPLICATION

21. This application must be determined by looking to see what orders are in the children’s best interests. Some assistance as to matters relevant to overseas travel is obtained from Kuebler and Kuebler (1978) FLC 90-434 and Line v Line (1997) FLC 92-729.

22. It is easy enough to see a real benefit to the children in the trip. They are clearly familiar with the country and have an attachment to it. They are well acquainted with the family members who live there. They will be able to visit them, friends and participate in a special family event. Whether this trip will assist the children to overcome the stumbling block in their relationship with their father, as the ICL suggested it might, is something that will have to be determined in the future.

23. The real issue is the risk to the children of the trip which includes the possibility of them not being returned.

24. In his affidavit filed 9 July 2024, the father identified the risk as:

    61.I am severely concerned about the prospect of [the mother] and I both being in [Country B] at the same time, particularly given the criminal proceedings currently on foot.

    62.[The mother] and I live approximately 10 minutes apart from one another in [Country B] and I am concerned about what allegations may be made upon my return from [Country B].

25. I do not know what allegations might be made by the mother. Presumably, the father especially but also the mother will be keen to behave properly and carefully whilst they are both in Country B. But if they do not then evidence will be given about it. This is too insubstantial a risk to be counted as significant.

26. The father also raised the possible risk of the children being emotionally harmed by travelling to Country B and then not being permitted to live there permanently. That may be so but, on the evidence before me, the outcome postulated by the father for the final hearing will be bitterly disappointing for the children whether or not they go on this trip.

27. The father also pointed to the mother wanting to avoid further cross-examination in the criminal proceedings but there is no evidence to that effect and it remains a bare assertion.

28. In oral submissions, the father’s solicitor described the risk as the possibility the trip would reinforce the children’s views that they would wish to live in Country B and increase their dislike for the father. I suspect the former might be so but as to the latter, whilst it remains a possibility, whether it is likely cannot be ascertained.

29. Although being twice requested to do so, the father’s solicitor did not make any submissions as to any risk of non-return of the children, despite such a unilateral act by the mother clearly not being in their best interests. Accordingly, despite the lack of submissions I consider it necessary to deal with that risk.

30. The mother and the ICL relied on the following facts pointing to the likely return of the mother with the children:

    ·Country B is a party to the Hague Convention on the Civil Aspects of International Child Abduction (the father submitted that the criminal charges against him might prevent him from obtaining relief under the convention by virtue of the application of article 13. However, as the mother is the key witness in the criminal proceedings which presumably will fail if she does not return to complete her evidence, that point carries no weight);

    ·The mother owns a home in Sydney that is subject to a mortgage;

    ·The property settlement proceedings between the parties are yet to be determined;

    ·The mother has significant employment in Australia as a manager earning $150,000 per annum;

    ·The mother has paid the children’s school fees in Sydney for the rest of the year;

    ·The mother is prepared to lodge $50,000 in the trust account of the father’s solicitor as security for the return of the children.

31. Finally, in a persuasive submission, the ICL put that the mother is likely to return the children because failure to do so would destroy her hopes of success at the final hearing in December.

32. These matters are sufficient to persuade me that on balance, the mother is more likely than not to return the children. Put another way, the bond and, in particular, the looming property settlement proceedings are sufficient to ameliorate any risk of non-return.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge.

Associate:

Dated:       17 July 2024