Samaras & Allen (No 2)
[2023] FedCFamC1F 682
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Samaras & Allen (No 2) [2023] FedCFamC1F 682
File number: SYC 5524 of 2017 Judgment of: BRASCH J Date of judgment: 8 August 2023 Catchwords: FAMILY LAW – PARENTING – Where final consent orders made on most parenting issues – Where mother also applied for interim orders for international travel with the child to attend family weddings in Europe, coming home via Country K – Where father belatedly sought orders to see the child in Country K for three days on the child’s way back to Australia with the mother – Where mother says father an unacceptable risk if allowed to see child internationally – Where question of international travel set down for final hearing in a month – Where risk can be fully examined at the looming trial – Orders made for the mother to travel with the child Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CC
Convention on the Civil Aspects of International Child Abduction
Cases cited: Line & Line (1997) FLC 92 729 Division: Division 1 First Instance Number of paragraphs: 38 Date of hearing: 8 August 2023 Place: Sydney Counsel for the Applicant: Ms Kennedy Solicitor for the Applicant: Lander & Rogers Counsel for the Respondent: Mr Fermanis Solicitor for the Respondent: Vizzone Ruggero Twigg Lawyers ORDERS
SYC 5524 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ALLEN
Applicant
AND: MR SAMARAS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BRASCH J
DATE OF ORDER:
8 AUGUST 2023 (AMENDED 17 AUGUST 2023)
THE COURT NOTES THAT:
A.The orders below were made as part of the orders made on 8 August 2023 and also include the make up time orders that were inadvertently omitted.
THE COURT FURTHER ORDERS THAT:
Passport
30.The parties by this order authorise E Lawyers to release X’s expired passport held in their safe custody to the mother for the purpose of the application for X’s new passport.
Overseas Travel
31.X be permitted to travel internationally with the mother from September 2023 to October 2023 inclusive, save for any changes to travel imposed by the airline.
Time With orders
32.X’s time with the father pursuant to those orders will be suspended.
33.X’s time with the father pursuant to order 6.1 of orders made 8 August 2023 be suspended.
34. That for the purposes of make-up time, X is to spend time with the father as follows:
34.1 during the Term 3 school holidays, from 9.30am on 3 October 2023 until 9.30am on 7 October 2023; and
34.2from after school on Friday, 13 October, to before school on Monday, 15 October 2023.
Costs
34.Each party’s costs are reserved to trial.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BRASCH J:
These are my ex tempore reasons. I will correct the record for grammatical error and to make the oral word more amenable to the written word.
What I have before me today is an Application in a Proceeding filed by the mother on 12 July 2023. That Application seeks some passport orders and permission to travel, primarily to Country M, between September of this year and October for family weddings. The mother seeks permission to be able to take the child with her.
The child is X, born 2016.
I cannot, on the material that is actually before me, discern terribly much about the parties’ relationship. The father tells me that the mother was born in 1988 and the father in 1981. The relationship, the father says, began in 2009, and they were married in 2013. Separation occurred in June 2016. This matter has a long history in the Court, with the father filing an Initiating Application the following year - obviously being 2017.
The father does not oppose the travel that is proposed by the mother or a passport [for X]. If that is the case, it remains a mystery to me why the passport application had not been signed beforehand. Nevertheless, it has [now] been signed.
The issue in dispute that is before me is the father wants to spend time with the child when in Country K from 8.00 am on the date of arrival to 3.30 pm on the date of departure. I shudder to think at the cost of today’s legal proceedings, over what is essentially two nights.
The material that is before me on this matter is set out in the parties’ Case Outlines, but augmented in each case.
The applicant mother relies upon:
·Application in a Proceeding filed 12 July 2023;
·Affidavit of Ms Allen filed 12 July 2023; and
·Affidavit of Ms Allen filed 7 August 2023.
The mother’s counsel put various documents before me, which became Exhibit 1.
The father relies upon:
·Response to an Application in a Proceeding filed 7 August 2023;
·Affidavit of Mr Samaras filed 7 August 2023;and
·Affidavit of Mr Samaras filed 8 August 2023.
Documents from the father’s counsel became Exhibit 2. The parties jointly tendered material from the Australian Federal Police, which became Exhibit 3.
This is a parenting matter so, obviously, I must be guided by what is in the best interests of X. Part VII of the Family Law Act 1975 (Cth) (“the Act”), and specifically s 60B sets out the objects and principles of the Act. Section 60CC directs my attention to X’s best interests.
The primary considerations are, to summarise them, to ensure X has a relationship with both parents but, one that is safe. That is my shorthand summary.
It is clear from well-established authorities that I do not need to turn my mind to every single one of the additional considerations. Case law tells me that I need only turn my mind to the s 60CC best interest considerations that are actually relevant and by how the parties presented their cases. Both parties present a case that it is in X’s best interests to have overseas travel. For example, the father quite appropriately deposed in his first affidavit:
I believe that [X] both needs and deserves a holiday and I believe it’s in [X’s] interests to enjoy an overseas holiday with both [Ms Allen] [the mother] and also myself…
(Father’s affidavit filed 7 August 2023, paragraph 14)
and he then goes on to talk about his loving relationship with his daughter.
I also accept when the father says:
I am excited for [X] that she will be able to travel to Europe with her maternal family...
(Father’s affidavit filed 7 August 2023, paragraph 17)
Education for children is not just that which happens in the four walls of a school. Opening children’s eyes to other cultures and experiences is something that is usually considered a marvellous experience for them.
Ordinarily, when overseas travel is proposed, authorities such as Line & Line (1997) FLC 92 729 (“Line & Line”) direct my attention to, for example at [4.49], the degree of risk the departing parent, once permitted to leave Australia (despite assurances to the contrary) will choose not to return – so the risk of flight.
Plainly, when the father says, ‘yes, the mother can go overseas with the child’, he is saying that she is not a flight risk. However, on this interim basis, the mother’s case is that the father is [an unacceptable risk]. That is not something I can determine today on an interim basis.
Line & Line also tells me I must consider whether the departing parent (or, both parents on the father’s case), are intending to travel with the child to a country that is or is not a signatory to the Convention on the Civil Aspects of International Child Abduction (“the convention”), signed at the Hague on 25 October 1980.
It is common ground that the time the father proposes X spend with him is in Country K, which is not a convention country. I cannot help to observe though that the mother herself is proposing to go to a non-convention country. Another factor from Line & Line is the financial circumstances of both parties. I have a costs agreement for the mother but not yet for the father. I am told I will have Silks appearing for three days next month. I know very little about that other than they can obviously, on the mother’s case, afford a silk and travel overseas and back again – the father too, a Silk, and travel overseas and back again. But I come back to the point that implicit in the father’s position that the mother be able to take X on the trip overseas, is that he does not consider her a flight risk.
The father says, for example, at his paragraphs 18 and 19 of his first affidavit that he is concerned that by X only being able to travel with her maternal family, that may impact upon his relationship with X. He says X will have had the benefit and experience of memories of a fun and memorable holiday to Europe with her maternal family but denied an opportunity to spend time in another culture with him. That paragraph, albeit, just taken in isolation, makes it sound like this trip to Europe in September and October is the only opportunity for travel.
I have a three-day trial coming up next month where one of the two issues is whether X can travel with the father overseas. It is a matter that I will be determining on a final basis relatively quickly. I struggle with the concept that if the father cannot have two nights with X in Country K, that will cause some impact on his relationship with the child, or, the child’s relationship with him. Indeed, this morning, I made consent orders on a final basis, which see X spending significant and substantial time with the father, albeit in Australia.
I also refer to paragraph 18, where the father tells me that X has said things to him on a number of occasions like:
Mum said you cannot take me overseas, so she has to. [X] has also said to me, “Mum said you are not allowed to go […], so she’s taking me […]”.
(Father’s affidavit filed 7 August 2023, paragraph 18)
I have no doubt that in the trial next month, I will hear much about who has said what to the child, or not. I may also be assisted by Dr D’s evidence on the [parental] conflict. On a prima facie basis, she [Dr D] deposes that X finds herself caught between the parents who, despite consent orders this morning, have obviously been at loggerheads with each other over parenting arrangements since 2017.
I do not consider X’s relationship with her father will be damaged in any way if she is unable to spend three days and two nights with him in Country K. What I do have before me, though, is litigation that has been on foot since 2017.
A fragile peace seems to have been struck with the consent orders that I made this morning. I congratulate both parties on reaching those consent orders but, obviously, there are two disputes still outstanding.
I am looking at the best interests of X, and concerned to have those consent orders bedded in. I do not consider it in X’s best interests that the parents be in a non-Hague country, trying to negotiate changeover times or changeovers, say, for example, if flights were delayed, and this is, of course, in a non-Hague country. I appreciate the father has set times in his affidavits, but it seemed to be common ground that international travel has not returned to the stability and consistency we once enjoyed.
In short, I have formed the view (noting that there is a trial only weeks away that will deal with this issue) that the idea of the parents trying to effect three days, two nights of time in a non‑Hague country is not one that is in X’s best interests right now. To use the language of someone who will be familiar to everyone, I want to “give peace a chance”.
On a final basis, the mother is opposed to the father travelling overseas, not only on this [occasion], but it may well be on a final basis. In other words, a live issue for trial next month is travel for the father [with the child]. If he is successful, he will be able to travel wherever he wants [with the child]. If he is not successful, then we will consider that at the time.
Conversely, if the parties were able to agree on some kind of tail-end time of the holiday travel, then I would have given that considerable thought, but they do not. We have very senior and experienced counsel and lawyers here arguing about a short period of time, when I will be dealing with the matter on a final basis very soon.
I accept that consent orders have been signed this morning. I accept that the mother has consented to equal shared parental responsibility and, at least, that suggests that she thinks the father is a good enough parent. However, that is not the end of the story from the mother’s perspective. Her counsel referred to the “lack of containment” in a non-Hague country. Her counsel submitted that if there were problems here in Australia, they could be easily resolved.
But I do not, today, accept the mother’s concerns as findings about the father’s criminal past. As I said, there is the consent order, but as has become perfectly clear to me - and this is the other part of the story that I referred to before - I am going to hear three days’ worth of evidence about, it would seem, the father’s criminal history and the Australian Federal Police’s involvement, or not, with him.
It also concerns me today that if I acceded to the father’s order that he be able to spend the tail bit of time with X overseas, I would be determining the risk issue that is live for the trial. I would be determining that on an interim basis. Again, I highlight, the trial is not that far away.
But my primary reason for saying no on the interim application of the father is to bed down the consent orders. X needs to be relieved of the burden of the conflict that Dr D refers to in her untested or unchallenged report, and certainly, does not need the burden of any conflict between the parents about changeover times or delayed flights in an overseas country, which happens to be non-Hague.
I will therefore make the orders that the mother proposes - that she be able to travel. I would though propose an amendment subject to hearing from counsel and the ICL [about allowing for airline carrier delays].
I also acknowledge the Independent Children's Lawyer was in favour of travel, and there was some force in what he said - that there has been a cloud around the father and the police are interested in him, and that has been well-known to the mother, but she has now agreed to equal shared parental responsibility and significant and substantial time. It was said if the father is good enough in Australia, then he must be good enough in a non-Hague country.
I accept the father offered [at hearing] that the mother could keep the father’s passport and the child’s [passport], but as ought be clear, I am not making determinations about risk today. This is an interim hearing; I simply cannot. What I am determining, though, on this interim basis, is to give the consent orders a chance to work and not be hampered by difficulties overseas.
That, in no way, suggests the father will never be able to travel [with the child]. That is the issue that is before me next month.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 17 August 2023
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