Schaden & Landt
[2021] FCCA 463
•4 March 2021
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
MRR v GR [2010] HCA 4
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 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.
IT IS NOTED that publication of this judgment under the pseudonym Schaden & Landt is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The mother seeks orders that would facilitate her travelling urgently with the parties’ daughter, X aged 2 years, to Country B to visit her father who is in palliative care and close to death. These reasons for judgment explain why I make orders that will allow her to do so.
The mother is Ms Schaden. She was born in 1982 in Country B.
The father is Mr Landt. He was born in 1982 in Country C.
The parties commenced a relationship in Australia in 2014 and separated in January 2019.
The parties’ child X (“X”) was born in 2018 and is currently two years and four months old.
PROPOSALS AND DOCUMENTS RELIED ON
The mother seeks orders permitting her to travel with X to Country B and return to the Commonwealth of Australia within three weeks of the date of her father’s death.
In support of such orders, the mother relies on:
(a)Application in Case filed on 22 February 2021; and
(b)Affidavit filed on 19 February 2021.
The father opposes the orders sought by the mother. He does not give consent to X travelling outside of Australia and proposes that should the mother travel to Country B, X should remain in Australia with him.
In support of such orders, the father relies on:
(a)Response filed 2 March 2021; and
(b)Affidavit filed on 2 March 2021.
On 23 October 2020 an Independent Children’s Lawyer (“ICL”) was appointed to represent the interests of X. The ICL, Mr Samuel has prepared a Case Outline document.
The ICL relies upon the Child Inclusive Conference Memorandum dated 22 October 2020.
The mother tendered:
(a)A Skyscanner printout indicating available flights to Country B.[1]
(b)Information regarding status of exit permit from Australia.[2]
[1] Exhibit A, Skyscanner flight search Country B to Sydney.
[2] Exhibit B, Email to Chambers dated 2/03/2021 containing outcome of travel exemption request from the Department of Home Affairs.
I was referred to publicly available material published by the Department of Home Affairs regarding travel outside of Australia. On the basis of that material there was agreement that:
(a)the Australian Government has recently extended the complete ban on overseas travel until 17 June 2021 in accordance with the Biosecurity Act 2015; and
(b)The mother and X, as permanent residents of Australia, cannot leave Australia unless granted an exemption on compassionate or humanitarian grounds.
The mother proposes to travel to Country B to see her dying father, preferably with X. She tearfully conceded that if X was not permitted to accompany her, then she would reluctantly travel to Country B and leave X in the father’s care.
In arriving at a determination regard has been had to:
(a)The relevant filed material and tendered material;
(b)Previous court orders;
(c)Part VII of the Family Law Act 1975(Cth); and
(d)Two cases referred to me by the mother; Contadini & Georgiou [2020] FamCA 807 and Kerson & Blake (No.2) [2020] FamCA 892.
The parties were self-represented.
Cross examination did not occur.
All parties made oral submissions. Each of those submissions has been properly considered in reaching the determination but I am not required to specifically address or respond to them individually.[3]
[3] Baghti & Baghti and Ors [2015] FamCAFC 71.
As the Full Court has observed, the interim hearing process is a truncated one in which the Court should not make findings based on contested facts, but rather look to agreed facts and issues not in dispute, whilst still following the legislative pathway.[4]
[4] See Salah and Salah (2016) FLC 93-713; [2016] FamCAFC 100; MRR v GR [2010] HCA 4.
ISSUES FOR DETERMINATION
Should X accompany the mother to Country B or stay in Australia with her father?
If the mother is permitted to travel with X to Country B:
(a)What conditions should be put in place prior to her departure?
(b)Should there be requirements placed on her stay?
(c)Should an order be made for the father to enjoy additional time with X by way of “make-up” time?
BACKGROUND
These proceedings commenced on 4 June 2019 by way of the mother filing an Initiating Application seeking parenting orders. In her application she sought urgent orders to allow her to travel with X to Country B and Country D (to visit family).
On 1 July 2019 orders were made by consent permitting the mother to travel to Country B with X. Orders were also made for X to communicate with the father by FaceTime on two occasions each week.
X and the mother returned from Country B on 21 September 2019 whereupon the father resumed daytime contact with her.
On 28 October 2019 the parties entered into consent orders which provided that X live with the mother and spend time with the father:
(a)each Tuesday and Wednesday from 3 PM until 6 PM;
(b)every second Saturday from 1 PM to 5 PM; and
(c)every second Sunday from 1 PM to 5 PM.
On 4 June 2020 the father’s weekend time with X was extended to commence at 11 AM and conclude at 5 PM.
On 22 October 2020 a Child Inclusive Conference Memorandum was prepared which reported that “X presented as a well-looked after child who has a close relationship with both her parents”.[5]
[5] Child Inclusive Conference Memorandum dated 22 October 2020.
Following the release of the memorandum, the parties entered into consent orders which provided for equal shared parental responsibility of X. A notation was made that the father was “agitating” for overnight time for one to two nights but the mother was resistant to this until X attained the age of three. An ICL was appointed.
On 13 February 2021 the maternal grandfather was diagnosed with stage four lung cancer. Accordingly, the mother filed an Application in a Case on 22 February 2021 seeking an urgent listing of the matter.
The mother’s application was listed on 3 March 2021 for interim hearing. The Court was advised by the mother that her father had been admitted to the palliative care hospital on Monday, 1 March 2021. She has been advised by family members that he does not have long to live. There was no dispute about this.
Judgment was reserved and handed down on 4 March 2021 given the urgent nature of the mother’s request.
SHOULD X BE PERMITTED TO TRAVEL TO COUNTRY B WITH THE MOTHER?
The father’s submissions
The father expressed two main objections to X travelling to Country B with the mother:
(a)He is concerned about the risks associated with the COVID-19 pandemic citing that Country B is considered a high risk “hot-spot”; and
(b)He fears that X will not return to Australia due to potential travel restrictions associated with COVID-19 as well as past comments by the mother to the effect that she would prefer to live in Country B.
He was also concerned about the overall impact of these risks on X including that:
(a)Should X’s return to Australia be delayed it would have an impact on her relationship with him.
(b)It would not be in X’s best interest to be in such close proximity to her dying grandfather and “witness his physical deterioration in the final stages of his illness”.
(c)It would be upsetting for X to experience her mother’s distress and grief.
(d)X is an active child who will suffer in quarantine or lockdown periods both on arrival in Country B and on her return to Australia.
(e)X will miss her paternal family in Australia.
The father proposes that X stay in Australia with him whilst the mother travels to Country B to farewell her father and finalise affairs arising from his death. He sets out in his affidavit how he will care for X in the mother’s absence.
The mother’s submissions
The mother seeks to travel to Country B within 5 days and remain there until three weeks after her father’s death. She conceded that more certainty around travel dates might be required by the father and indeed the Court. She indicated a willingness to travel within an agreed period of time. She tendered a search conducted on “Skyscanner” to indicate availability of flights between Australia and Country B.[6]
[6] See above n 1.
The mother has been the primary caregiver for X her entire life. She is therefore concerned about the negative impact on X of any long absence. Indeed she says “it would be detrimental for her emotional development if we were separated for an extended period”.
The mother acknowledges the concerns of the father about the COVID-19 situation in Country B. She provides in her affidavit detailed material about the current COVID-19 requirements and how she will manage the compulsory 7 day isolation period at her family home. The parties live on the Region E of Sydney and the mother deposes how she and X have managed isolations periods in the past.
She says the risks of X contracting COVID-19 are low. She deposes details of her family accommodation in Country B and how she will minimise contact with people outside the home. She will agree to a restraint on her travelling with X outside of a 20 kilometre radius of her accommodation in Country B.
The mother says she is not a flight risk and Australia is her home. She deposes extensive ties in Australia and says she is in the process of gaining Australian citizenship. She is employed in a full-time role where she has recently been promoted. She also deposes having a 12 month lease on her apartment. She intends to maintain X’s day care arrangements in Sydney.
She has offered to return to Australia on business class as it will more likely secure her return in accordance with a travel itinerary and avoid the delays that have been reported in the media.
She proposes depositing a security bond with the Court to satisfy the father’s concerns.
She has applied for an exit permit on compassionate grounds but provides evidence that it has been rejected because she is required to submit court orders allowing her to travel with X, before her application will be considered.[7] She takes the view that she is highly likely to be granted an exemption to travel by the Australian Government.
[7] See above n 2.
The ICL’s submissions
The ICL filed a detailed Case Outline document. He described this case as an “extremely difficult” one and described the two competing proposals as being “finely balanced”.
While the ICL acknowledged the risk of the mother not returning to Australia with X, he noted that she has previously travelled internationally with X and returned. He feels that the mother has significant stability in and connection to Australia. However, he is concerned that the mother has not defined a period of time but rather says she will remain in Country B for up to three weeks after her father’s death.
X is only two years old. He is concerned about the detrimental impact caused by a separation from the mother, especially for an extended period of time. He does however acknowledge that this needs to be balanced with the deprivation of her relationship with her paternal family in Australia.
The parties conceded that X might have spent approximately five nights in the overnight care of the father since separation. The ICL noted that X has not spent any significant overnight periods with the father since separation. Leaving X in the care of the father is an untested proposition and risks psychological and emotional impacts on X.
The ICL noted that the Child Inclusive Conference Memorandum recommended a move towards X spending overnight periods with the father but that it was not supportive of a move that would include extended periods of time such as this. He further noted that the mother might be required to remain in Country B for two to three months or longer should the Australian Government not allow her to return as planned.
He expresses concern about X’s safety in Country B due to COVID-19. Country B is a COVID-19 hotspot and a high risk location. He is also concerned that air travel could place X at further risk.
The ICL also asks the court to take judicial notice of the difficulty Australians are presently experiencing returning to Australia.
On balance the ICL said “the court could go either way” but he favoured the making of an order permitting X to travel with the mother to Country B.
THE LAW
The principles governing the determination of competing parenting applications are set out in Part VII of the Family Law Act 1975 (“the Act”).
When making a parenting order the Court must consider what is in the best interests of the child pursuant to section 60CA.
The child’s best interests are determined by a consideration of the objects and principles in section 60B of the Act and the primary and additional considerations in section 60CC.
Section 60CC(2A) of the Act provides that in applying these considerations, the Court must place greater weight on the need to protect a child from harm than on the benefit to the child of having a meaningful relationship with their parents.
The mother referred me to the cases of Contadini & Georgiou [2020] FamCA 807 and Kerson & Blake (No.2) [2020] FamCA 892.
I am also influenced by the principles enunciated by the Full Court in Kuebler & Kuebler (1978) FLC 90-434. In that case a non-exhaustive list of factors to consider was identified including:
(a)The length of the proposed stay out of the jurisdiction;
(b)The bona fides of the application;
(c)The effect on the child of any deprivation of access;
(d)Any threats to the welfare of the child by the circumstances of the proposed environment;
(e)The degree of satisfaction in which the Court based its assessment of the parties that a promise of a return to the jurisdiction would be honoured.
DETERMINATION
The mother and the father are genuine people who love and care deeply for their daughter. They put forward their cases in good faith and had thought carefully about their positions on the matter. I found them both to be credible.
Ultimately the Court is required to determine what outcome would be in X’s best interest. The ICL directed me to a range of considerations that I have had regard to under section 60CC(3) and the relevant factors underpin the decision that has been made for the mother to be permitted to travel to Country B with X.
Whilst I appreciate the difficulty for the mother is settling on a timeframe for travel, she has to do so. Otherwise there is a risk that X’s absence from Australia is excessively long and impacts adversely on her relationship with the father and paternal family.
There is no dispute as to the bona fides of the application. The mother has provided appropriate evidence of her father’s parlous state of health.
X is not of school age so the impact on her development is rather limited. However, she has been building up her time with the father and the Child Inclusive Conference Memorandum indicates a healthy and positive relationship. Indeed it was remarked that “X seemed delighted to see her father and rushed to embrace him. She seemed engrossed with playing with him”.[8] The memorandum recommended that “X would cope with overnight time with her father and that she would enjoy spending longer periods of time with him”.[9]
[8] See above n 5.
[9] Ibid.
If X was to accompany the mother to Country B, it would be appropriate for her to spend additional time with the father over and above that provided by the consent orders in recognition of the time which she would not have with the father as a result of the trip to Country B. Moreover, it would also be appropriate for X to be able to have regular communication with either parent she is absent from.
Although the father has raised the risk of the mother not returning to Australia with X, Country B is a Hague Convention country. The mother was clear about her intention to return to Australia. She has complied with previous orders and returned from international travel. I do not find this to be a realistic risk.
The real risks in this case are the ones arising from COVID-19. There is a risk that international travel will expose X to contracting COVID-19. The mother says that this risk will be mitigated by her staying largely in the very spacious family home and not being exposed to the outside world. I accept that the risk of X contracting COVID-19 in Country B is greater than in Australia. However, I take judicial notice of the low incidence rate and impact on young children.
The mother’s request has also arisen in a climate where there are reports of many Australians caught overseas and unable to return to Australia. There is a risk that even if the mother left with X, planes might be cancelled and they might become stranded in Country B. It is reasonable to assume that the mother’s travel plans might be impacted by external events. The mother mitigates this risk by offering to return by business class.
If their return was delayed due to circumstances beyond the mother’s control the father would have even more time apart from X. Conversely, if X remained with the father there is also a risk of a lengthy separation from her mother. Either outcome is not ideal but cannot be mitigated against.
In Deiter & Deiter [2011] FamCAFC, [82], the Full Court considered the issue of risk and observed that:
Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. . . it is always a question of degree depending on the evidence that is before the Court.
I am not satisfied on the whole of the evidence that there is a high likelihood of X contracting COVID-19.
I think there is a much greater risk of harm to X if she was separated from her mother for an extended period of time. I accept that such an absence would be detrimental for her emotional development and has the potential to cause psychological harm.
The concept of “a meaningful relationship” has been discussed in many authorities, most significantly the decision of Justice Brown in Mazorski & Albright.[10] Those authorities establish that “a meaningful relationship” is a qualitative concept. The relationship is not measured simply by the amount of time the child is spending with each parent, but the quality of the relationship that exists between the child and parent.
[10]Mazorski & Albright [2007] FamCA 520.
Having said that, it is much more difficult for X to maintain a meaningful relationship with her father if she is away for an extended period of time. Regular electronic interaction via Skype or FaceTime is no replacement for personal interaction and physical affection. But an order allowing X to speak with her father every two days will at least allow a maintaining of the relationship. Her time with the father can be increased on her return to compensate for the interruption to the development of their relationship. This is also consistent with the recommendations made in the Child Inclusive Conference Memorandum. I also hope that in making such an order, it will avoid the need for additional court time to be allocated to interim matters.
The mother has offered to pay $1,000 by way of security. I do not find that the sum offered would be adequate to cover all of the costs associated with recovery if that became necessary. Indeed the Skyscanner flight record estimated flight costs of around $4,000. The ICL suggested that an amount of $5,000 was more appropriate and the mother indicated that she could borrow that amount and was prepared to deposit it with the Court.
Setting a security amount serves two purposes. It should serve to ensure the mother complies with her obligation to return X to Australia. But it should be an amount adequate enough to enable the father to take action to obtain the return of the child.
For the reasons given, I am not satisfied that the risks set out in this judgment are such as to outweigh the benefit that X will derive from remaining in her mother’s care and accompanying her to Country B.
As well as setting a security bond at $5,000, the mother’s time away will be limited to two months. Further, X should not leave Australia until there are purchased return flights booked and evidence that the security bond has been lodged.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Beckhouse. Associate:
Dated: 12 March 2021
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