SCOZZARI & SCOZZARI

[2015] FamCA 472

FAMILY COURT OF AUSTRALIA

SCOZZARI & SCOZZARI [2015] FamCA 472

FAMILY LAW – CHILDREN – Mother permitted to travel with child outside the Commonwealth of Australia for specified period.

APPLICANT: Ms R Scozzari

RESPONDENT: Mr Scozzari

FILE NUMBER: CAC 210 of 2013

DATE DELIVERED: 12 June 2015

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 12 June 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	Mr Bak
SOLICITOR FOR THE RESPONDENT:	No appearance by or on behalf of Mr Scozzari

Orders

1. That Ms R Scozzari (maiden name …), born … 1972, be permitted to travel with and to take the young person, S, a female, born on … August 1997, outside the Commonwealth of Australia for a period approximately from 17 June 2015 to 18 July 2015 (allowing for exigencies in variation in travel plans brought about otherwise than by the actions of the applicant).  The purpose for the travel is a holiday to Italy with a stopover in Singapore.

2. To avoid any ambiguity as to the effect of such an order in relation to the other children, I note that the mother’s proposal about the care of the other children during her absence is set out in paragraphs 29 and 32 of her affidavit, filed in this court on 11 June 2015, and that I regard those arrangements as being satisfactory and in the best interests of the children.  I note that those arrangements will involve the continuation of B and C seeing their father during the mother’s absence. 

3. I adjourn the balance of the mother’s application, together with the application that the mother be dealt with for contravention (unless it is earlier withdrawn) to 30 July 2015 at 10am for the purposes of the further determination of the other matters, particularly relating to the orders sought amending the orders entered into on 2 March 2015 by consent. 

4. That the mother’s costs in the sum of $1,000 be reserved until the return of the matter before me on 30 July 2015.

IT IS NOTED that publication of this judgment by this Court under the pseudonym   Scozzari & Scozzari 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 CANBERRA

FILE NUMBER: CAC 210 of 2013

Ms R Scozzari

Applicant

And

Mr Scozzari

Respondent

REASONS FOR JUDGMENT

1. In this matter, the proceedings before the Court are two-fold, although some will be adjourned to a later date.  The matters that give rise to the matter being before the Court this day arose from an initiating application, filed on 11 June 2015, made returnable on my direction this day at 2 pm.  That application seeks a number of orders arising out of orders that were made by consent between the parties on 2 March 2015.  In particular, order 2 in the initiating application filed on that day seeks as follows:

   That the mother be permitted to take the child, [S], born on …August 1997, outside the Commonwealth of Australia for the period 17 June 2015 to 18 July 2015, for the purposes of a holiday to Italy, stopping over in Singapore.

2. The balance of the application seeks variations to the orders that were made on 2 March 2015.  A proper consideration of those matters may require some attention to be given to the so-called rule in Rice & Asplund.  However, having said that, there appears to be, from the material supplied in support of the application, at least a prima facie basis for saying that the existing orders need to be varied in some way to the benefit of and the best interests of the children.

3. Leaving that to one side – and those matters will be dealt with at a later date – in this matter service was attempted of the application, admittedly at fairly short notice, on the respondent.  An affidavit of attempted service by Mr N was filed this day in Court, in which he deposes to his attempts to deliver the documents to the respondent.  The affidavit speaks for itself, but has been amplified, at least in part, by the evidence of the applicant this day that the address, D Street, Town E, is in fact the home of the respondent father’s mother. 

4. She gave evidence that the truck …, New South Wales registration, that was referred to in paragraph 2 of the affidavit of attempted service, is a vehicle used by, if not owned by, Mr Scozzari.  It would be reasonable to infer, given that evidence, that the person to whom the process server spoke may well have been Mr Scozzari.  This is in accordance with some of the corroborative evidence given by the applicant mother.  I have to say that the evidence is not sufficient to make me satisfied completely that Mr Scozzari was the relevant person, but it is certainly reasonably possible that it was he. 

5. In addition, I have had today the evidence of one of the members of the Client Services staff of the Family Court, who said in brief that he was carrying out his duties on the counter at the Family Court this day when a female person approached to file some documents purportedly on behalf of Mr Scozzari.  Those documents were identified by the court officer as being an application that the mother be dealt with for contravention of an order of this Court and a supporting affidavit. 

6. Those documents were filed and after verifying the fact with my associate, listed for 2pm this day.  The person filing the documents, who asserted that she was a friend of Mr Scozzari, was told that would be at the same time as the other matter was listed for today.  That person expressed surprise that there was any matter listed for today.  This may or may not be consistent with Mr Scozzari’s having the documents or being otherwise aware of the fact that the matter was before the Court.  She indicated to the court officer (on his evidence) that she would inform Mr Scozzari that the matter was before the Court this day.  She did indicate that she might have to drive to Town F to do that - but apparently was willing and able to do so.

7. When the matter came before the Court at 2pm, Mr Scozzari was called outside the court and there was no appearance by or on his behalf.  In the circumstances, in so far as they relate to the second order sought by the mother (that is she be permitted to remove S from Australia for the approximately one month period referred to) I am satisfied that it would be appropriate and proper to dispense with any further service on the respondent in relation to that application, and moreover that in the circumstances that it is appropriate that I should proceed to deal with the matter in the absence of the respondent.

8. I digress for a moment to comment that the contravention application filed on behalf of Mr Scozzari (or purporting to be on behalf of Mr Scozzari) sought that the respondent be dealt with for a breach of order 18 of the consent orders;  the breach is asserted to have been:

   That the respondent obtained [S’s] passport without my authorisation or knowledge.

9. The affidavit in support indicates that there has been some correspondence between Mr Bak on behalf of the mother and Mr Scozzari, but my attention is drawn to order 18, the order which is alleged to have been breached, and I note that it reads as follows:

   That the parties immediately do all things necessary to obtain passports for the children, and the mother is to hold the passports but shall not take the children or any of them out of Australia without the consent in writing of the father.

10. In those circumstances, a suggestion that the passport for S was obtained without the father’s consent does not bring about a situation where there might have been a breach of order 18.  And, in fact, it was necessary in compliance with order 18 for the passport to be obtained.  Mr Bak has submitted to me – and I accept – that as the mother was given sole parental authority, it was appropriate that she should be the one to apply for the passport in any event.  The suggestion that it in some way needed the consent of Mr Scozzari is misconceived.

11. All of that having been said, we will deal with that on a different date, when Mr Scozzari has had an opportunity to address the Court.  However, it may, in fact, result in some diminution of any costs application if he were to withdraw his application before the event - if upon proper consideration he accepts that there is no breach of the orders referred to in the material that has been filed.

12. Moreover, there is a reference, for reasons not quite clear to me, that there was a failure to provide five weeks notice of the travel.  There is nothing in the orders which suggests that there is any such temporal restriction on the notice to be given to the father. 

13. The circumstances in which the mother wishes to travel overseas with S are set out in her affidavit.  I do not propose to review them in detail, except to say that the proposal for her to visit Italy for the purposes of a family wedding, and to provide an opportunity for the parties’ daughter, S, to have some close time with her mother in the course of what has, apparently, been a very difficult year for S, seemed to me to be entirely reasonable.  I have no difficulty in saying that this is a matter which, in the best interests of S, ought to result in an order which ameliorates the restriction imposed by order 18 of the orders.

14. The only qualifying matter that I raise in relation to that is the fact that necessarily if the mother travels overseas with S that leaves the other girls in Australia.  The father, in the course of his affidavit in support of his application for contravention, although seemingly irrelevant to the actual allegation as to the breach, suggests that he is unhappy with the arrangements that have been made for the remaining girls while their mother and S are away, in that:

    I raised concerns with Mr Bak relating to my children being left with their grandparents for over four weeks while their mother and sister were in Italy.

15. The “concerns” of Mr Scozzari, unsupported by any further detail, are not a matter which would, in my opinion, provide any proper basis for this Court to be worried about a situation where the mother of the children, who has sole parental responsibility and was agreed by Mr Scozzari to have sole parental responsibility, has made a decision about what would be a satisfactory or, indeed, probably, a better than satisfactory arrangement for them during her absence.  We are not talking about a long period of time; we are talking about a month.  In my opinion, subject only to the consent of the grandparents, which I am prepared to infer has been granted, the arrangements for the remaining children are satisfactory.

16. As the order I am about to make is a parenting order, it is necessary that I should consider that the order is in the best interests of the children.  On a practical level, I have already indicated why I think this would be so.  In addition, I point out that this is a matter which would seem to provide at least some temporary respite as between the parents in relation to what still appears to be a situation of some conflict between them in relation to the children and other matters, and that would also bear upon my decision.  I am satisfied, inferentially if in no other way, that S wants to be involved in the arrangements that are proposed for her, and there are no other matters, in my opinion, which bear upon the determination of this which could properly be raised under s 60CC.  Certainly I have no such matters before me on behalf of the respondent at this point.

17. It seems to me that it would have been reasonable for the father to have made concessions about the travel at a much earlier point, rather than a few days before the departure.  I accept that there has been some argument about what notice he had of the proposed departure, but I equally accept that he did know that it was proposed at about this time.  It is hard to avoid the conclusion that perhaps he delayed for as long as he reasonably could on the assumption that that may, in some way, interfere with the travel arrangements. 

18. It is unnecessary, however, for me to make such a finding in these proceedings.  It is enough that, in my opinion, in the absence of the father and in the absence of any consent of the father, I should make an order permitting S to travel with her mother to Italy. 

19. Mr Bak asked that I would reserve the mother’s costs, or a right to apply for an order about costs in relation to today’s proceedings and I will do that, while adjourning the balance of proceedings, including the contravention application, to a new date. So far as the costs of today are concerned, Mr Bak estimates those costs at $1,000. I will reserve the order in relation to costs for the next time the matter is before the court, but identify that the quantum of costs that I would order, or the quantum as to costs, as s 117 of the Family Law Act prescribes, I would identify as being $1,000.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 12 June 2015.

Associate: 

Date:  22 June 2015