FEDERAL CIRCUIT COURT OF AUSTRALIA
Schaden & Landt [2021] FCCA 463
File number(s): SYC 3469 of 2019 Judgment of: JUDGE BECKHOUSE Date of judgment: 4 March 2021 Catchwords: FAMILY LAW – interim parenting – where the mother seeks to travel with the child to Country B on compassionate grounds – where current COVID-19 travel restrictions are considered Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC Cases cited: Baghti & Baghti and Ors [2015] FamCAFC 71
Contadini & Georgiou [2020] FamCA 807
Deiter & Deiter [2011] FamCAFC 82
Kerson & Blake (No.2) [2020] FamCA 892
Kuebler & Kuebler (1978) FLC 90-434
Mazorski & Albright [2007] FamCA 520
Salah & Salah (2016) FLC 93-713; [2016] FamCAFC 100
Number of paragraphs: 75 Date of last submission/s: 3 March 2021 Date of hearing: 3 March 2021 Place: Sydney The Applicant: in person The Respondent: in person Solicitor for the Independent Children's Lawyer: Brian Samuel & Associates ORDERS
SYC 3469 of 2019 BETWEEN: MS SCHADEN
Applicant
AND: MR LANDT
Respondent
ORDER MADE BY:
JUDGE BECKHOUSE
DATE OF ORDER:
4 MARCH 2021
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.The matter is listed for mention on 17 June 2021 at 9:30am before Judge Kemp.
2.The mother Ms Schaden born in 1982 is permitted to travel with the child X born in 2018 (hereinafter “the child”) to Country B as soon as can be arranged with her travel time to not exceed 2 months from the date of departure unless otherwise agreed by the father or with reasonable excuse.
3.The mother shall provide to the father and the Independent Children’s Lawyer, within 48 hours prior to her scheduled departure with the child, the following:
(a)Confirmation of flight bookings and flight numbers for the mother and the child;
(b)A copy of the return ticket to Australia for the mother and the child showing a business class ticket for her return; and
(c)The address of accommodation where the mother and the child will be residing/staying in Country B; and
(d)Evidence that she has lodged with the Registrar of the Court the sum of $5,000 as security for performance of the mother’s obligation to return the child to Australia no later than 2 months from the date of departure pursuant to Order 6.
4.During any period of travel/absence from the Commonwealth of Australia, the mother shall make the child available for video communication with the father each alternate day at 7pm AEST for a period of up to 30 minutes or at any other time as agreed between the parties.
5.To the extent that the following orders are inconsistent with Orders 2, 3 and 4 of the Orders made on 28 October 2019 (that is, for the time the child may spend with the father), the operation of those Orders be suspended upon the child’s departure from the Commonwealth of Australia and until the child returns to the Commonwealth of Australia.
6.The mother will remain in Country B with the child for…
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CaseChat Overview and Summary
The court was required to determine whether the mother should be permitted to travel with X to Country B, and if so, what conditions should be imposed on her departure and stay, and whether compensatory time should be ordered for the father. The court also considered the father's concerns regarding the child's welfare and the potential for the mother to not return the child to Australia.
Beckhouse J reasoned that while the father's concerns were understandable, the mother's urgent need to travel due to her father's terminal illness was a significant factor. The court balanced these competing interests by imposing strict conditions to mitigate the father's risks. These included requiring the mother to provide flight confirmations, a return business class ticket, details of accommodation, and lodging a $5,000 security deposit. The mother was also restrained from travelling more than 20 kilometres from her family's residence in Country B and was ordered to facilitate daily video communication with the father. The court also made orders for "make-up" time for the father to compensate for the period X would be absent.
The court ordered that the mother be permitted to travel with X to Country B for a period not exceeding two months, subject to the detailed conditions outlined in the orders. These conditions included the lodging of security, provision of travel and accommodation details, and arrangements for the child's communication with the father. The court also made specific provisions for make-up time for the father and suspended certain existing parenting orders during the period of travel.
Orders
Orders of the court
SYC 3469 of 2019
BETWEEN:
MS SCHADEN
Applicant
AND:
MR LANDT
Respondent
ORDER MADE BY:
JUDGE BECKHOUSE
DATE OF ORDER:
4 MARCH 2021
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1. The matter is listed for mention on 17 June 2021 at 9:30am before Judge Kemp.
2. The mother Ms Schaden born in 1982 is permitted to travel with the child X born in 2018 (hereinafter “the child”) to Country B as soon as can be arranged with her travel time to not exceed 2 months from the date of departure unless otherwise agreed by the father or with reasonable excuse.
3. The mother shall provide to the father and the Independent Children’s Lawyer, within 48 hours prior to her scheduled departure with the child, the following:
(a) Confirmation of flight bookings and flight numbers for the mother and the child;
(b) A copy of the return ticket to Australia for the mother and the child showing a business class ticket for her return; and
(c) The address of accommodation where the mother and the child will be residing/staying in Country B; and
(d) Evidence that she has lodged with the Registrar of the Court the sum of $5,000 as security for performance of the mother’s obligation to return the child to Australia no later than 2 months from the date of departure pursuant to Order 6.
4. During any period of travel/absence from the Commonwealth of Australia, the mother shall make the child available for video communication with the father each alternate day at 7pm AEST for a period of up to 30 minutes or at any other time as agreed between the parties.
5. To the extent that the following orders are inconsistent with Orders 2, 3 and 4 of the Orders made on 28 October 2019 (that is, for the time the child may spend with the father), the operation of those Orders be suspended upon the child’s departure from the Commonwealth of Australia and until the child returns to the Commonwealth of Australia.
6. The mother will remain in Country B with the child for the duration of her absence from Australia on the following conditions:
(a) The mother is restrained from travelling with the child more than 20 kms away from her family’s principle residence in Country B.
(b) By no later than 72 hours prior to her departure from Australia the mother will lodge with the Registrar of the Court, the sum of $5,000 (Security Funds) as security for performance of the obligation to return the child to Australia no later than 2 months from the date of departure.
(i) by electronic transfer into the following account:
Account name: Federal Court of Australia
BSB: ...
Account No.: ...
(c) upon the child’s return to Australia, the Security Funds lodged shall be released forthwith.
7. The father have liberty to apply on short notice and ex parte to make an urgent application for the release of the Security Funds, if the mother has not returned the child to Australia within 72 hours of the child’s scheduled return so as to meet the reasonable costs and expenses of and incidental to the recovery and return of the child to Australia.
MAKE-UP TIME
8. In lieu of the time the child would otherwise have spent with the father during the travel period.
(a) The child shall spend an additional 5 hours on the day prior to her departure with the father, and
(b) Time with the father will recommence in accordance with the Orders dated 28 October 2019 within 72 hours of the child’s return to Australia; and
(c) Within two months of the child’s return to Australia, the child will commence spending overnight time with the father on a night to be agreed between the parties and failing agreement, each Tuesday night from after day care until before day care on Wednesday morning.
Additional matters
9. The mother may provide a copy of this Order to the Department of Home Affairs.
10. Liberty to apply at short notice is reserved in relation to the implementation of this Order.
THE COURT NOTES THAT:
A. Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.
B. Penalties may apply pursuant to ss 112AD and 121 of the Family Law Act 1975 if the information is disseminated other than as ordered in these proceedings.
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.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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