Schild & Schild
[2023] FedCFamC2F 613
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Schild & Schild [2023] FedCFamC2F 613
File number(s): PAC 4364 of 2020 Judgment of: JUDGE STREET Date of judgment: 7 March 2023 Catchwords: FAMILY LAW – PARENTING – where applicant father sought to take the children overseas – where the respondent mother did not appear – where the subject country is a Hague Convention country Legislation: Australian Passports Act 2005 (Cth); s 11
Family Law Act 1975 (Cth); ss 43, 60CA, 60CC, 65AA, 65D, 65Y, 65Z, 65ZAA, 69ZL, 69ZN
Cases cited: Jansen & Kwan (No. 2) [2022] FedCFamC1F 729
Milligan & Shaw [2022] FedCFamC1F 176
Zlotnik & Gerasimov [2021] FedCFamC1A 56
Division: Division 2 General Federal Law Number of paragraphs: 10 Date of hearing: 7 March 2023 Place: Sydney Solicitor for the Applicant: Matthews Dooley & Gibson Respondent: No appearance Solicitor for the Independent Children’s Lawyer: Mark MacDiarmid Family Law Specialist ORDERS
PAC 4364 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SCHILD
Applicant
AND: MS SCHILD
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE STREET
DATE OF ORDER:
7 March 2023
THE COURT ORDERS, PENDING ANY FURTHER ORDER, THAT:
1.The Applicant Father has sole parental responsibility for the children X born 2013 and Y born 2016 (“the Children”), in relation to the application and maintenance of an Australian passport and Country B passport, without the necessity of obtaining the consent or signature of the Mother for that purpose.
2.Subject to any other requirements of the Department of Foreign Affairs and Trade, passports be issued to the Children to enable them to leave Australia and it’s territories notwithstanding that the consent of the Respondent Mother has not be obtained.
3.The Children be permitted to travel to Country C, Country B, and other European countries with the Father in mid-2023.
4.The parties are to file and serve by 16 May 2023: -
(a)Any Amended Application or Response;
(b)An updated Financial Statement;
(c)A single consolidated Trial Affidavit; and
(d)Affidavits from any other witnesses upon which they rely.
5.The parties are to deliver to the Chambers of Judge Street by 6 June 2023 in electronic format a paginated and indexed joint Tender Bundle containing all documents upon which the parties propose to rely.
6.By 6 June 2023 the parties are to file and serve a Case Outline which is not required to be in the form of the Outline of Case Document (Final Hearing) or limited to a maximum number of pages and which is to include: -
(a)A Minute of the Orders sought
(b)A list of the documents to be read in their case;
(c)A brief chronology;
(d)A Schedule of Objections;
(e)A Joint Balance Sheet; and
(f)A brief summary of Argument.
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 the pseudonym Schild & Schild has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET
This is an interim Application in a Proceeding to permit the applicant father to take the two children overseas. X was born in 2013 and is nine years old. Y was born in 2016 and is seven years old. The orders sought in the application in a proceeding are not opposed by the Independent Children’s Lawyer. The Court is satisfied, on the affidavits that have been read by the applicant father, that the respondent mother was properly notified of these proceedings.
The Court has taken into account the five principles in s 69ZN of the Family Law Act 1975 (Cth) (the “Act”), the principles in s 43, as well as the entitlement to give short reasons in s 69ZL and that, being a parenting order, the best interests of the children are the paramount consideration under ss 60CA and 65AA of the Act.
The Court has also taken into account the principles in relation to overseas travel and degree of risk and the statutory provisions as identified in Jansen & Kwan (No. 2) [2022] FedCFamC1F 729 at [40]-[42]:
40.Part VII of theFamily Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B of the Act sets out the objects and principles of Pt VII as follows:
(1)The objects are to ensure that the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
41.In Masson v Parsons[2019] HCA 21; (2019) 266 CLR 554, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ noted that the focus of the objects was on “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child” [8].
42.For overseas travel, I have taken note of authorities such as Line & Line[1996] FamCA 145; (1997) FLC 92-729 (“Line”) which indicates I consider the degree of risk of a parent not returning with the children, including their ties to Australia, motives to return or not, and whether the proposed country is a Hague Convention country.
The Court has also taken into account the broader statutory provisions applicable under Part VII, being the primary and additional considerations in s 60CC of the Act, as identified in the decision of Milligan & Shaw [2022] FedCFamC1F 176 at [33]-[45]:
33. Section 60CA of the Act provides that:-
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
34. Pursuant to s 60CC(1) of the Act:-
...in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
35.Those primary considerations contained in s 60CC(2) of the Act and additional considerations contained in s 60CC(3) of the Act are set out hereafter.
36.Section 60CC is contained within Pt VII of the Act. The objects of Pt VII of the Act are set out in s 60B(1) of the Act, and are to ensure that the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
37.The principles underlying the objects of Pt VII of the Act are set out in s 60B(2) of the Act, and, unless it would not be in a child’s best interests, are:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
(d) parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
38.Section 61DA of the Act requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. If the presumption of equal shared parental responsibility does apply, or the Court is otherwise satisfied on the evidence that it is in a child’s best interests to make an order for equal shared parental responsibility, then the Court must consider whether it is in a child’s best interests and reasonably practical to spend equal time with each parent or, if not equal time, whether it is in a child’s best interests and reasonably practical for a child to spend substantial and significant time with each parent.
39.The presumption set out in s 61DA of the Act does not apply where there are reasonable grounds to believe that a parent has abused a child the subject of the proceedings or another child of that parent’s singular household at the time or engaged in family violence, (s 61DA(2)). Further, the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)).
40.“Family violence” is defined in section 4AB of the Act and is as follows:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
41. Pursuant to ss 60CC(2) and 60CC(2A) of the Act:-
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
42.The Court must also consider the additional considerations under s 60CC(3) of the Act, as far as they are relevant to this proceeding.
43.In Mulvany & Lane[2009] FamCAFC 76; (2009) FLC 93-404 it was observed by Finn, May and Thackray JJ that:
76.It is important to recognise that the miscellany of "considerations" contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child's best interests.
77.It needs also to be remembered that the importance of each s 60CC factor will vary from case to case...
(Emphasis in Original)
44.Whilst the additional considerations as set out in s 60CC(3) must be considered by the Court, specific reference to each and every of those considerations is unnecessary in these reasons.
The Court has also taken into account the considerations of the kind that may arise in relation to overseas travel and passports as discussed in Zlotnik & Gerasimov [2021] FedCFamC1A 56. The Court may make such parenting order as it thinks proper under s 65D and, the ability by order of the Court, to permit taking the children outside Australia under s 65Y, and the requirement in that regard under s 65Z as well as, on the facts, arrangements of return of the children as otherwise caught by s 65ZAA of the Act.
In the present case, the applicant father has identified a desire to take the children overseas for a family occasion. The father has addressed in detail; the period in respect of the travel, the booking of the flights, as well as his intention to return. The Court has taken into account that the father was born in Country B and has also taken into account that on the court file there was a Notice of Risk filed by the mother. The Court has had regard to the mother's affidavit, which identified her being the subject of an apprehended violence order and identified significant ongoing mental health issues. The Court notes that Country B is a Hague Convention country.
It is of moment in the present case that the children have not had contact with the mother since June 2022. The mother has not attended today and, as the Court has identified, the Court is satisfied the mother was on notice and that it is appropriate to proceed to deal with the interim application to ensure the applicant father's ability to participate in the family occasion in mid‑2023. The period involved is for one month in mid-2023. The father has identified his work in Australia as well as a relationship to Australia. The Court is satisfied that there is no real risk of the children being left in Country B in the circumstances of this case. The Court is also satisfied that it is in the best interests of the children to have the benefit, albeit young, to see overseas family and the cultural benefit that they will obtain from that overseas travel.
The Court has taken into account that the respondent mother's entitlement to Saturday visits needs to be suspended during that period. Given that the mother has not engaged with the children since June last year, the Court is satisfied that it is appropriate to suspend that time as sought in the orders identified by the father. The Court is not satisfied this is an appropriate case to require any bond. The Court is also satisfied that this is an appropriate case in which the father should have the possession and control of the children’s passports, particularly in the circumstances of the mother's mental health issues and failure to engage in the proceedings to date. The Court’s orders, in effect, permit the father to obtain the issue of Australian passports for the children consistent with s 11(1)(b) of the Australian Passports Act 2005 (Cth) without the mother’s consent.
The Court is also aware that these orders only address the entitlement of the father. Given the mother's mental health issues, this is not an appropriate case in which to make equal overseas travel orders. For these reasons, the Court makes the orders as sought in the application in a proceeding.
The Court is also satisfied that it is appropriate to make further procedural orders in respect of the intended hearing of the property and parenting matter, as sought in the short minutes proposed by the applicant father. The hearing date was fixed last year. In essence, the proposal provides a further opportunity for compliance with the orders to ensure that the hearing can take place on the date intended. For these reasons, the Court also makes the procedural orders in the short minutes dated 2 March 2023.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 24 May 2023
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