SAWYER & SAWYER

[2015] FamCA 453

FAMILY COURT OF AUSTRALIA

SAWYER & SAWYER [2015] FamCA 453

FAMILY LAW – CHILDREN – With whom a child lives – International relocation – Parental responsibility – Best interests – Where the mother lives in Australia and the father lives in Sweden – Where consent orders were reached during the trial – Further order made providing for a bond to be paid by the father prior to the child travelling to Sweden during holiday periods.

Family Law Act 1975 (Cth)

APPLICANT: Mr Sawyer

RESPONDENT: Ms Sawyer

INDEPENDENT CHILDREN’S LAWYER: Judy Stewart

FILE NUMBER: BRC 12336 of 2007

DATE DELIVERED: 11 June 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 11 June 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Sinclair

Sandra Sinclair

COUNSEL FOR THE RESPONDENT: Mr O'Meara

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Bunning

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Stewart Family Law

Orders

IT IS ORDERED BY CONSENT THAT

1. All previous parenting Orders are discharged.

2. The Mother has sole parental responsibility in relation to the child, B born … 2001 (“the child”). 

3. The child shall live with the Mother.

4. The child shall spend time with the Father at all times as may be agreed between the Mother and Father and failing agreement to be at least as follows:

   (a)       For any period of time that the Father travels to Queensland as follows:

   (i)Such time shall occur in the Sunshine Coast region in the event that the time occurs during school term and the Father will ensure that the child attends school each day during those periods of time that the child spends with him;

   (ii)Time shall be, on each occasion that the Father travels to Australia, for a maximum period of two (2) weeks;

   (iii)Time shall occur only in the Commonwealth of Australia and the child shall not be removed from the Commonwealth of Australia;

   (iv)Time shall commence at 3.00 pm on the first day that the Father elects to spend time with the child and shall conclude at 3.00 pm on any day up to fourteen (14) days later;

   (b)During the Queensland June/July and December school holiday periods each year on the following basis:

   (i)The Mother will deliver the child to the Brisbane airport for the purposes of a flight to Stockholm/Copenhagen on the first Saturday after the end of Term 2 and Term 4 respectively;

   (ii)The Father will collect the child from Stockholm/Copenhagen airport once the child arrives there on the flight;

   (iii)The return flight for the child at the end of the school holiday period must have the child being returned to the Brisbane airport by the Friday prior to the commencement of Terms 1 and 3 respectively and the Father shall deliver the child to the Stockholm/Copenhagen airport so that she can make that flight back to Australia;

   (iv)The Mother shall meet the child’s flight back from Sweden and collect her from the Brisbane airport;

   (v)The costs of the flights and travel insurance and notice to the Mother in relation to the flights and travel insurance shall be met and given in accordance with Order 6 and in the event that the Father does not give the requisite notice to the Mother pursuant to Order 6 then time shall not occur pursuant to this Order.

5. The child shall communicate with the parents at all times as may be agreed between them, failing agreement to be as follows:

   (a)By email, Skype or telephone at any time that the child may request, with the child to have privacy to make the call to the other parent;

   (b)Each Sunday the child is living with the mother, then at 6.00 pm local Queensland time she shall take a Skype/telephone call from the Father, and each Sunday the child is living with the father, then at 10.00 am local Swedish time she shall take a Skype/telephone call from the mother, and the parent she is living with shall facilitate such call and ensure that the child has privacy to speak with the other parent.

6. In relation to Order 4:

   (a)In the event that the Father intends to exercise time with the child pursuant to Order 4(a) he will provide to the Mother thirty (30) days’ notice of his intention to exercise time and shall set out the dates that he intends to exercise time.  Any airfare and other costs associated with the time shall be at the Father’s expense.  Changeover shall occur at the Mother’s home;

   (b)In relation to Order 4(b):

   (i)The Father shall bear the costs of the child’s travel to and from Sweden;

   (ii)Three (3) calendar months prior to the commencement of the school holiday periods the Father shall pay for and email to the Mother the flight itinerary/paid tickets and travel insurance for the child for her travel to and from Sweden;

AND IT IS FURTHER ORDERED THAT

(iii)At least one calendar month prior to the child’s scheduled departure from Australia for Sweden the father shall have caused the clear sum of five thousand Australian dollars (AUD$5,000) to be deposited into the trust account of a firm of solicitors in Queensland, nominated by the mother, to be held as security for the child’s return to Australia at the end of her holiday in Sweden, with such sum only to be released back to the father on the return of the child to Australia at the end of the holiday or otherwise to be released to the mother to pay legal and travel costs she might incur in seeking the child’s return to Australia through the proper legal processes and so to be clear, the child shall not depart Australia on a holiday to Sweden pursuant to the terms of this parenting order unless such bond has been put in place;

AND IT IS FURTHER ORDERED BY CONSENT THAT

(iv)The only requirement of the Father to spend time with the child pursuant to Order 4(b) is the provisions set out in Order 6(b).

1. Each of the parties shall provide all necessary authorisation for the other parent to obtain any information and/or documents (at their own expense) from any of the child’s school, extracurricular activity providers, hospitals attended, medical and allied health providers.

2. The Mother and Father will not denigrate the other party in the presence or hearing of the child and must use their best endeavours to ensure no third party denigrates the other.

3. The Mother and Father keep each other informed of their residential address, home and mobile telephone numbers and email addresses and advise the other party of a change to same within forty-eight (48) hours of such a change.

4. Neither party shall use physical discipline on the child and shall not allow any other person to do so. 

5. If the child is not returned to the Mother pursuant to these Orders prior to the child attaining the age of sixteen (16) years, such that the Mother is required to take recovery action, for any reason that is within the Father’s control, the Father will pay the Mother’s costs on an indemnity basis for recovery of the child to Brisbane, Australia. 

6. The Mother shall hold the child’s passport and the passport shall be released to the child only for the purposes of travel pursuant to these Orders. 

7. Mr C shall explain these Orders to the child, at the first available opportunity. 

8. The parents shall ensure that each of them is nominated as the child’s parent on any school enrolment form or school records.

9. The child shall travel overseas on an Australian Passport and each party shall do all such things as may be necessary to lodge/renew the child’s Passport. 

10. The child shall spend time with the Father between 9.00 am and 4.00 pm on 12 June 2015, collection and delivery of the child to occur at the Mother’s residence.

IT IS FURTHER ORDERED THAT

1. The Independent Children's Lawyer shall be discharged upon compliance with paragraph 13 of these Orders.

NOTATION

(A)Travel insurance is defined to include cover under a travel insurance policy for hospital and medical cover.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 12336 of 2007

Mr Sawyer

Applicant

And

Ms Sawyer

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On the second day of a trial of contested parenting proceedings between Mr Sawyer and Ms Sawyer in respect of their daughter, B who was born in 2001, I have been handed a draft of terms of an agreement reached by the parties in respect of parenting arrangements that they ask me to make into an order with their consent. 

2. I have been through that draft with them and have discussed some proposed amendments that I consider appropriate to the draft of the terms that they agreed upon. I have been informed by all of the parties at the bar table, including counsel for the Independent Children's Lawyer, that such amendments are appropriate and accepted by them in respect of the terms of orders ultimately to be made by me with their consent. 

3. At the end of the process and before I have actually formally made the orders, I have been told that there were still two discrete issues upon which I would be required to exercise my judicial discretion and to determine where there was no agreement between the parties.  The first one was an order that the father sought and that was an order that was in these terms:

   In the event the child relocates to Sweden permanently after she turns 16 and without the Mother, Order 2 is discharged and the Father shall have parental responsibility.

4. Order 2 of course is an order by which currently the parties agree that whilst she is to stay living with the mother, the mother is to have sole parental responsibility.  I indicated fairly quickly  without even hearing from counsel for the Independent Children's Lawyer or counsel for the mother, that I was not minded to make such an order, immediately being of the view that such an order is not in the child’s best interests at this point in time. 

5. As I said earlier during the proceedings today, I do not want the Court’s imprimatur in some way to be involved with any further promotion of the notion by one of the parents that this child can decide herself to live in Sweden at some time in the future.  That is a matter that should in my view be left between the parents and the child.  I will not make an order that in some way telegraphs or communicates to the child, even in an implicit form, that this Court considers that she should, when she is 16, make such a decision. I refuse to make that order. 

6. The second contested issue upon which I have been asked to make a determination is in relation to the provision by the father of a financial amount that has been described by all the parties as a “bond” prior to the child’s travel overseas pursuant to the balance of the terms they have agreed upon, so that there is money to cover another order that is to be made by agreement of the parties relating to any action the mother has to take to recover the child from Sweden if she is retained there by the father on any of the holidays that she spends with him in the next couple of years. 

7. The mother, through her counsel, seeks an order that a bond of $20,000 be put up by the father. The father opposes that.  The Independent Children's Lawyer has, through her counsel, indicated support for the notion of a bond and support for the notion of the bond being fixed in the sum of $5,000 as I have indicated I was more minded to do in the absence of evidence that the father has any capacity to pay a bond of $20,000.

8. The evidence is that on prior occasions, by consent, the parties have agreed to a bond being put in place. I am told that on the first occasion it was AUD$15,000 and on the last occasion which was the Christmas holidays 2013, that it was only AUD$5,000. 

9. Relevant to my determination in this is the fact that the parties have agreed to the following order being made.  It is number 11 on the draft and it says:

   If the child is not returned to the Mother pursuant to these Orders prior to the child attaining the age of sixteen (16) years, such that the Mother is required to take recovery action, for any reason that is within the Father’s control, the Father will pay the Mother’s costs on an indemnity basis for recovery of the child to Brisbane, Australia.

10. For the mother, it is submitted by her counsel that such an order needs the support of a bond to give it some teeth effectively, although he did not use that term.  For the father, it is submitted that he has always in the past returned the child and I am told now that of course on the last occasion of the 2014/2015 school holidays, no bond was required. 

11. Having heard all of the cross-examination of the father by counsel for the mother and counsel for the Independent Children's Lawyer, and reading the evidence that I have and hearing the submissions of the parties, I am persuaded that it is in the child’s bests interests at this point in time for an order in respect of a bond of AUD$5,000 to be made.  I do accept the proposition that it is more likely having regard to a combination of the order that is number 11 that I read out and the actual provision of a bond, that there will be no trouble in respect of the child being returned to Australia at the end of her holidays in Sweden, at least until the time she turns 16. 

12. Accordingly I consider it in the child’s best interests for such an order to be made.

13. Satisfied that the balance of the terms the parties asked me to make into orders with their consent are in the child’s bests interests, I make all of the orders that are set out in this draft, signed by the parties and handed to me, from paragraph 1 through to paragraph 16, with the notation that is on the document to be included with the amendments that I have discussed with the parties and drawn myself, being included in that provision rather than those that were already there that I replaced. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 11 June 2015.

Associate:

Date:  16 June 2015