Saunders and Saunders

[2010] FamCA 1120

FAMILY COURT OF AUSTRALIA

SAUNDERS & SAUNDERS [2010] FamCA 1120

FAMILY LAW – CHILDREN – Mother’s oral application to obtain passports without the father’s consent – Father submitted he would be denied procedural fairness if the mother was given leave to proceed – Finding that no injustice is caused to the father – Leave to proceed with the application is granted – Where mother took the children on holidays and travel in contravention of Family Law Act 1975 (Cth) s 65Y – Risk that the mother might remove children from Australia beyond the scope of orders is theoretical and not unacceptable – Orders made in favour of the mother

Family Law Act 1975 (Cth) s 65Y

APPLICANT: Mr Saunders

RESPONDENT: Ms Saunders

FILE NUMBER: (P)NCC 2217 of 2007

DATE DELIVERED: 17 November 2010

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: The Hon. Justice Ryan

HEARING DATE: 17 November 2010

REPRESENTATION

APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Ms Galloway

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Davies

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ticehurst Foat Lawyers

Orders

1. That Orders 2 to 18 inclusive of the Orders made by Justice Mullane on 13 September 2004 be discharged.

2. That the father’s communication and time with the children J born … September 1994 and K born … April 1999 be limited to the following:

   (a)one visit to take place at Rainbows Contact Centre on a date nominated by the father, which date shall be before 11 December 2010 or after 20 January 2011;

   (b)by the father providing any letters and gifts for the children to the Independent Children’s Lawyer (Bruce Foat of Ticehurst Foat) for transmission on to the children;

   (c)by any communication initiated by the children to the father for which the father may provide the Independent Children’s Lawyer with his contact details for the Independent Children’s Lawyer to transmit those contact details to the children.

3. The father shall give written notice to the solicitor for the mother within 48 hours of the date of these Orders of the date nominated by him for the visit referred to in Order 2(a).

4. That the father be restrained from any communication with the children other than that initiated by the children in accordance with these Orders.

5. If the children initiate contact with the father, the mother will not interfere with that contact taking place.

IT IS FURTHER ORDERED:

1. Pursuant to s 128 of the Evidence Act 1995 (Cth) a certificate is issued to the mother in relation to evidence about her removal of the children J and K from the Commonwealth of Australia.

2. The mother has leave to make an oral application for orders for the issuance of Australian passports for the children and permission to remove them from the commonwealth of Australia during school holidays.

3. That the mother is permitted to apply for Australian passports for the children J born … September 1994 and K born … April 1999 without the father’s consent until each child turn 18.

4. That the mother may remove the abovenamed children or either of them from the Commonwealth of Australia during school holidays provided the children have a return ticket on each occasion prior to their departure.

5. The mother may permit the children to reside outside of the Commonwealth of Australia during school term provided the relevant child has either finished his or her secondary education or, if still attending school, the trip is part of a school trip.

6. That the mother is restrained from permitting the children to reside outside of the Commonwealth of Australia, except as provided in Order 10 hereof.

1. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

2. All outstanding parenting applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC2217 of 2007

MR SAUNDERS

Applicant

And

MS SAUNDERS

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. On 11 October 2010, the solicitors for the respondent mother wrote to the solicitors then representing the applicant father and the Independent Children’s Lawyer.  They were put on notice it was her intention to make an oral application at this hearing for orders which would permit the mother to obtain Australian passports for the parties’ children, J and K, without the applicant father’s consent and until the children turn 18 years of age. Further correspondence was forwarded on 26 October 2010 by the solicitor for the respondent mother to the solicitor for the applicant father, seeking his views and/or consent in relation to the mooted application.

3. No response was provided by the solicitor for the applicant father to the correspondence referred to.  So that it is clear, this means there was no correspondence which indicated the father would object to the mother making such an application.    The Independent Children’s Lawyer responded in writing and indicated his consent to the approach proposed by the respondent mother.  During this hearing, the respondent mother sought the Court’s leave to make an oral application in those terms.  The father indicated, for the first time, his opposition to leave being given.  It was his submission he would be denied procedural fairness if the Court gave the mother leave to proceed. 

4. I allowed the mother’s oral application to proceed.  If the father wanted to mount a serious objection to the course proposed by her, it was incumbent upon him to respond to her solicitor’s letters dated 11 and 26 October 2010. There are two other factors, which particularly influenced my decision to allow the oral application to proceed.  Firstly, this matter has a long and sad history.  K has been the subject of litigation and orders more or less since birth.  She is now 11.  Dr Q’s most recent report makes clear the children and parties are weary of litigation, and the children are particularly weary of their parents’ disputation.  Secondly, along the way, costs orders of many thousands of dollars have been made in the mother’s favour against the father.  He has not complied with those costs orders.  A cost order in some thousands was made against the mother in the father’s favour. That the parties are willing to litigate unmeritorious applications is evident from the costs orders.  The point I seek to make is the children need, as far as the Court can offer it to them, an end to litigation.   

5. I gave the respondent father the opportunity to address me in relation to prejudice he might suffer if the mother’s oral application was allowed to proceed.  With respect to the father, his submissions focussed on his grievance about the manner in which he says his former wife has sought to exclude him from their children’s lives and the way, he claims, she has been able to manipulate court processes to achieve that aim.  While these are important matters for him, perhaps also the mother, they are barely germane to the issues that the Court must consider about the children’s passports and overseas travel. 

6. So with the focus on J and K, although it would have been better had the mother complied with the Family Law Rules 2004 and trial directions, I am not satisfied it would caused an injustice to the father if this application proceeds today.

7. The evidence in relation to the oral application has been given orally.  It is supplemented by the evidence relied upon in the now settled parenting matter,   particularly in relation to the nature of the children’s relationship with their parents and the importance to them that there is no more litigation. 

8. Mullane J made orders in 2005, which enabled the mother to obtain passports for the children and for her to have a planned holiday to Thailand. The orders were not open-ended. Equipped with a s 128 Evidence Act certificate, the mother gave evidence about holidays she has had with the children, to New Zealand in 2007 and Hong Kong in January this year.  Clearly, these trips were beyond the scope of Mullane J’s orders.  These holidays with the children were taken without the father’s consent or an order of a court exercising jurisdiction under the Family Law Act 1975 (Cth).

9. It is the mother’s evidence that she misunderstood that having secured the 2005 order from Mullane J, it would be necessary to comply with s 65Y. Section 65Y does tend to take people by surprise and, indeed, it is apparent that at least the solicitor for the mother was unaware of its existence. It may well be that the mother was unaware that the order made by Mullane J was insufficient permission for her to remove the children from Australia after their trip to Thailand.

10. In any event, the evidence shows that the mother took the children to New Zealand in 2007 and Hong Kong in 2010.  The children, on each occasion, returned to Australia after these short holidays.  It is the mother’s evidence that she plans to holiday with the children in the United States for three weeks during the forthcoming Christmas school holidays.  Thereafter it is likely she and the children may take further overseas holidays before K turns 18.  It is her view that overseas holidays are wonderful opportunities for the children to experience other cultures, religions, and to share the benefits, which are generally accepted, of international travel. 

11. As I understood the father’s submission, he agrees that international travel of this type is likely to have the stated benefits for the children. The father’s reasons for opposing orders which would be facilitative of not only the forthcoming Christmas holiday travel, but potentially other travel, can probably best be summarised as follows. Firstly, the children’s circumstances may change, and they may decide to come and live with him. Secondly, the mother has failed, he says deliberately, to abide obligations imposed by s 65Y, and thus the Court would be concerned whether she would abide any restrictions imposed on when and how the children could travel. Finally, the mother has, in the years that the parties have been litigating, demonstrated that she is willing to be less than frank with the Court and, on occasions, has been shown to give evidence, which was quite misleading. As to the latter point, this is an interesting submission, and I anticipate that anyone who perused the Court’s file, and particularly the judgments, would see that there have been concerns raised by a variety of judges in relation to the efficacy of evidence given by each of these parties. This has been an extraordinarily hostile separation, indeed, one that is all but unique in my experience. In any event, there is some force to the father’s submission that not every piece of evidence given by his former wife over the years has withstood scrutiny.

12. In relation to the risk the mother may take advantage of generous orders and travel more extensively than she has disclosed today, I accept that there is a risk that that may occur.  However, that risk has to be real rather than theoretical. 

13. The evidence has shown that on each occasion the mother has removed the children from Australia, they have returned.  The mother and children have lived all of their lives in Australia.  Had the mother been motivated to remove the children from Australia permanently, that opportunity has been available since 2005.  It is clear she has not attempted to do this, and there is nothing in the evidence which suggests this is a situation that is likely to change. 

14. On balance, I am persuaded that there is, at best, a theoretical and certainly no unacceptable risk that the mother might remove the children from Australia beyond the limits imposed by orders this Court may make.  The preponderance of evidence supports the children having the opportunity for the type of travel they have enjoyed to date, and for that to be facilitated by orders which are least likely to result in further proceedings. 

15. I also take into account the nature of the consent orders entered into today.  As a result of these orders, after the children see the father once more, the likelihood is there will be little or no contact between them at least until the children reach their majority.  Thus, even if the mother was to act contrary to the orders, the reality is this is highly unlikely to negatively impact upon the children’s relationship with the father.  This is a sad observation to make, but it is the reality of the point reached in the children’s lives. 

16. Thus for these reasons, I make the orders identified at the start of these reasons.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 17 November 2010.

Associate: 

Date:  8 December 2010