ROLLINS & VAN HUMMELL

[2017] FamCA 491

FAMILY COURT OF AUSTRALIA

ROLLINS & VAN HUMMELL [2017] FamCA 491

FAMILY LAW – CHILDREN – International Travel

Family Law Act 1975 – ss 70NEB, 70NFB and 117

APPLICANT: Mr Rollins

RESPONDENT: Ms Van Hummell

FILE NUMBER: CAC 1915 of 2008

DATE DELIVERED: 12 July 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 7 July 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Bak, Farrar Gesini & Dunn

SOLICITOR FOR THE RESPONDENT: Self-representing (interpreter Mr J D DeZwaan)

Orders

IT IS ORDERED BY CONSENT THAT:

1. The mother is permitted to take S (born … 2006) (‘S’) from Australia to the Country C for a period from two weeks before the end of the New South Wales school term four 2017, to return to Australia two weeks prior to the end of the New South Wales 2017-2018 Christmas school holiday period.

2. S shall spend the balance of the New South Wales 2017-2018 Christmas school holiday period with her father.

IT IS FURTHER ORDERED THAT

1. The parties are at liberty to relist the matter on seven days’ notice in writing in relation to the issue of emergency travel.

2. The application for expedition is refused.

3. The matter is listed at 10am on 4 December 2017 for directions.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rollins & Van Hummell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1915 of 2008

Mr Rollins

Applicant

And

Ms Van Hummell

Respondent

REASONS FOR JUDGMENT

1. Two matters arose for determination at this stage of the proceedings.  The first involved arrangements for international travel for Ms Van Hummell and the child S.  Ms Van Hummell comes from Country C, has relatives in Country C and accordingly S has strong ties to Country C.  While Ms Van Hummell and S and Mr Rollins currently live on the South Coast of New South Wales there is good reason for S to travel to Country C with her mother.

2. The scope of the dispute about international travel involved arrangements for the coming Christmas holidays and arrangements in case of an emergency occurring within Ms Van Hummell’s family in Country C.  The second matter that arose for disposition was the question as to the priority or expedition that would be given to this matter because of its particular circumstances.

3. The issue in respect of the Christmas holidays was not as to whether or not there should be travel to Country C.  The father accepted that there should be the capacity for Ms Van Hummell to take S to Country C this Christmas.  The scope of the dispute was as to the duration of that trip.

4. Ms Van Hummell sought that the trip take place for the full period of the school holidays, that is a six-week period.  Mr Rollins sought that it be for a four-week period so that he could spend a portion of the school holidays with S.  While reasons were advanced by each the parties as to why the particular orders they sought were the preferred orders in S’s interest, the matter ultimately resolved by consent on the basis that both parties were content for S to be removed from the last two weeks of the school term for the purpose of travel to Country C with her mother.  This would enable S to spend six weeks in Country C with her mother and still have the benefit of two weeks of holiday time with her father.  Orders will be made in accordance with the consent indicated by the parties.

5. On the question of emergency travel the position of the parties was as follows.  The mother sought default permission to travel in the event of a family emergency to Country C with the option to extend the period of time that she spent there on proof of the justification of the need to remain.  The father, in the alternative said that there should be no default permission but that if an emergency arose he would not withhold consent.  He further asserted that if an application was required in respect of the emergency travel than it was better to be an application that was required to be made by the mother in order to gain permission to travel to Country C, rather than an application by him to curtail that travel once the mother was in Country C. 

6. Hence, the present question is the mechanism to be adopted for emergency travel in the face of the possibility of a need to travel.  No certainty, nor likelihood, nor probability of the need to such travel is pointed to although Ms Van Hummell’s parents are ageing and her sister suffers from some degree of illness.

7. In support of his position, the father points to previous consents that he has given to overseas travel which include his consent to travel to Country C this Christmas.  He also points to the mother previously extending a period of time that she remained within Country C which he says caused him to involve the authorities to seek her return. 

8. The mother points to difficulties that she has in agreeing with matters with the father and asserts that she would comply with her obligations.  It should be noted that Country C is a Hague Convention country.

9. If an emergency occurs it seems that the information is likely to be in the mother’s hands to demonstrate to the father, who has indicated that he will not withhold consent, of the need to travel.  In the event that consent is withheld that same information will be in the mother’s hand to demonstrate the need for the travel to the Court.  It appears in this case that it is preferable to deal with the travel in terms of specific circumstances justifying a specific need to travel.  If circumstances put forward by the mother do justify the travel then it is likely that the father will consent.  If consent is not given, the matter may be relisted at short notice before me to deal with the matter.  Accordingly, on the basis that I will grant liberty to the parties to relist the matter on seven days’ notice in writing in relation to the issue of emergency travel I refuse the orders sought by the mother in respect of emergency travel.

10. The parties were invited to file material in order to deal with the priority that should be accorded to this case, given that it deals with issues of international relocation.  The mother sought that the matter be given expedition.  The father’s position was that it was a matter for the Court although he drew the Court’s attention to Rule 12.10(a) which deals with expedition.  He accepted that of the matters that are required to be taken into account under the Rule, the mother has acted reasonably and without delay, she has made the application without delay and that there is no prejudice to the father in expedition. 

11. He however, disputed that there are relevant circumstances to give priority to this case to the possible detriment of other cases, contending that the mother’s circumstances did not fit the relevant circumstances set out in the Rule.  The case presented by the mother is that she is enduring hardship living on the South Coast in what is not a culturally diverse environment that she personally finds difficult.  This is a burden testified to by her in the affidavit material filed earlier in the proceedings.  This constitutes a relevant circumstance constituting an aspect of hardship to the mother.

12. However, a relevant circumstance to justify expedition must have sufficient force to justify priority being given to the case to the possible detriment of other cases.  Where almost every matter listed in this Court, by virtue of the nature of the jurisdiction exercised by this Court, is characterised by difficult circumstances, for example children’s cases which involve issues of significant abuse or risk of harm, the circumstances must be such as to justify displacement of other cases.

13. It is clear that the circumstances of this case are troubling and that the circumstances of the mother are troubling, but not to a degree to justify displacement of other cases in the list.  It may be accepted that cases such as this, if resolved within a few months of listing, would greatly alleviate the difficulties posed to those involved in the litigation.  Such a timely resolution would prevent the aggravation of angst, difficulty, emotional trauma and undermining of co-parenting that accompany litigation.  Unfortunately that is common to the cases in this Court and the particular circumstances do not justify expedition.  The application for expedition is refused.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 12 July 2017.

Associate:

Date:  12 July 2017