SCRANTON & SCRANTON

[2015] FamCA 496

FAMILY COURT OF AUSTRALIA

SCRANTON & SCRANTON [2015] FamCA 496

FAMILY LAW – CHILDREN – interim parenting – application to vary final parenting orders to allow the children to travel overseas with the mother – where best interests of the children considered – where the parents’ attitudes to the responsibilities of parenthood is a significant consideration

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC

Goode & Goode (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346
Scranton & Scranton [2010] FMCAfam 1160

APPLICANT: Ms Scranton

RESPONDENT: Mr Scranton

FILE NUMBER: PAC 3475 of 2009

DATE DELIVERED: 29 June 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 15 June 2015

REPRESENTATION

APPLICANT – LITIGANT IN PERSON:   Ms Scranton

RESPONDENT – LITIGANT IN PERSON Mr Scranton

Orders

1. The Respondent father is to file a Notice of Address for Service in this Registry forthwith.

2. The Applicant mother be permitted to travel to the United States with X born … 2000 and Y born … 2003 (“the children”) during the period from 11 July 2015 to 2 August 2015.

3. The Parramatta Registry of the Family Court of Australia release the said children’s passports to the mother so as to facilitate the children’s travel with the mother and the mother return the children’s passports to the Parramatta Registry of the Family Court within 21 days of her return to Sydney.

4. Within 7 days of the making of these orders the Applicant shall provide to the Respondent a mobile telephone number which she uses regularly and which is not the number for a mobile phone normally carried by either of the children.

5. That within 7 days of the making of this order the Applicant shall provide to the Respondent either:

   (a)An email address which she uses regularly and which is not blocked to prevent reception of email from the Respondent; or

   (b)The email address of her legal representative

6. That each of the parties only use the telephone number and email address referred to in orders 4 and 5 for the purposes of communication regarding the father’s time with the children, travel for the children with either of the parents and for the purposes associated with the conduct of these proceedings but for no other purposes.

7. The father’s application for interim orders contained in his Response is, otherwise, dismissed.

8. The mother’s application for final orders is to be adjourned on a date to be fixed and notified by the Registry to the parties.

9. The mother is to file and serve 10 business days prior to the adjourned date any amended Application for final orders.

10. The father is to file a Response thereto 3 business days prior to the adjourned date.

11. Leave is granted to the father to appear on the next occasion by video link provided that such arrangements are made by him contacting the Registry 10 days prior to the next adjourned date to enable the technical arrangements to be made.

12. Reasons for decision are to be published on a date to be fixed.

13. The father is excused from attending Court when the reasons for my decisions are delivered.

Notation

1. The father’s application for final orders in his Response filed 12 June 2015 is withdrawn and dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Scranton & Scranton 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 PARRAMATTA

FILE NUMBER: PAC 3475 of 2009

Ms Scranton

Applicant

And

Mr Scranton

Respondent

REASONS FOR JUDGMENT

Introduction

1. In July 2010, the parties parenting proceedings were heard in the Federal Magistrates Court, as it was then known. These proceedings related to the parties’ two sons who are now 14 and 12 (“the children”). The parties, who were born and married in the United States, came to live in Australia in early 2000 and are now Australian citizens. Orders were made and judgement delivered by the Federal Magistrate in October 2010.

2. The father appealed against the parenting orders and the appeal was heard in October 2011 and judgment delivered in April 2012. The father’s appeal was dismissed and he was ordered to pay the mother’s costs.

3. Under the parenting orders, the mother has sole parental responsibility for the children who live with her. The children were to spend time with their father on an increasing regime, commencing with 12 occasions on a Sunday and leading up to each alternate weekend from Saturday morning to Sunday afternoon, half school holidays and special days. The father was to have telephone communication with the children one day per week. The parents were restrained from removing the children from Australia, except as specifically provided for in the orders and it was declared that the principal/ habitual place of residence of the children is Australia.

4. The specific travel orders allowed the parents each to travel to the United States with the children for a period not exceeding one month each alternate year. The father was permitted to travel in odd numbered years and the mother was permitted to travel each alternate even numbered year. In both cases the parents were to provide a travel itinerary, return air tickets, contact details in the United States and in the case of the father lodge a security for the children’s return. The children’s names were placed on the Airport Watch List. The mother was to hold the children’s passports, except when they were to travel to the United States with the father and the father was to return the passports to the mother when he returned to Australia at the conclusion of any travel period.

5. The parties subsequently amended the parenting orders by consent in September 2012 to remove the children’s names from the Airport Watch List, and to provide that all current passports issued to the children be held by the family law registry in Parramatta and be released only with the written consent of both parents. The consent orders also provided that each parent is permitted to travel to the United States, Canada, New Zealand and Fiji with the children each alternate year for a period not exceeding 40 days subject to particular conditions. Under the consent order, the mother was permitted to travel with the children in 2012 and each alternate year and the father was to travel in the alternating odd numbered years. The conditions also provided for the provision of a proposed travel itinerary, tickets, contact details and the like but did not require that the parents’ travel with the children occur during the children’s school holiday period.

6. In an Initiating Application dated 18 May 2015 the mother seeks a variation to the final orders, an interim basis. She seeks permission to travel to the United States with the children for three weeks from mid-July and that their passports be released to enable this travel to occur. The father does not agree to this proposed travel as it is not in accordance with the consent orders made in September 2012. The issue for me to determine is whether such permission ought to be granted on an interim basis and whether the father’s proposed interim orders in relation to contact with the mother be made.

7. On 15 June 2015 I made the interim orders as sought by the mother and also two of the interim orders sought by the father and indicated that I would publish my reasons at a later date. These are those Reasons.

Background

1. In order to determine the competing interim applications some further background is required.

2. The mother, who is 38, and the father, who is 47, were born in the United States. They married in State D in 1999 and came to Australia to live in January 2000.

3. The parties’ first son X was born in 2000 and their second son Y was born in 2003.

4. All members of the family became Australian citizens in January 2007, though they have also retained their United States citizenship. In November 2007 the mother moved with the children out of the family home, though the parties regard themselves as having been separated from July 2008.

5. The parties were divorced in October 2009 and the mother commenced parenting proceedings at around the same time.

6. The final orders on 26 October 2010 were made following contested proceedings. Of relevance, the Court ordered that the mother have sole parental responsibility for the children and that they live with her and the principal/habitual place of residence of the children was declared to be Australia. Orders also provided for the mother to hold the children’s US and Australian passports and that a request be made for the children’s names to be placed on the airport watch list. The orders also provided for the mother to travel with the children to the United States in odd numbered years and the father to travel with the children to the United States in even numbered years.

7. The father appealed the Court’s decision and on 5 April 2012, the appeal was dismissed by the Full Court of the Family Court.

8. The mother travelled with the children to the United States in 2012, as permitted by the orders. In connection with this travel, on 19 September 2012, the parties signed consent orders to remove the names of the children from the Airport Watch List and for the passports to be held at the Parramatta Registry and only be released with that the written consent of both parents. The consent orders also provided that the children’s travel with their parents be increased to 40 days with one parent in each alternate year. These consent orders (and the final parenting orders) did not require that the parents’ travel with the children take place during school holidays.

9. In mid-2013, the father travelled with the children to the United States and Canada.

10. In September 2013, the father moved permanently from Australia to the United States. He did not seek any amendments to the final parenting orders or further consent orders. The father has not spent time with the children as provided for in the October 2010 final parenting orders since his departure from Australia in September 2013.

11. The father initially experienced some difficulties after relocating to the United States in communicating with the children, though I understand there is a dispute between the parties as to why this had occurred.

12. After the father relocated to the United States the mother blocked his email address and changed her phone number. The mother says she did this to protect herself from the masses of emails sent by the father and excessive communication from him, which had been noted by the trial judge[1] as part of the father’s extreme obsessive behaviour which was intolerable for the mother.

    [1] Scranton & Scranton [2010] FMCAfam 1160

13. The mother did not travel to the United States in 2014 as she was unable to afford it. The father has not provided any financial support for the children as I understand it from at least the time he relocated to the United States. He also has not paid the mother’s costs associated with his unsuccessful appeal although he was ordered to do so.

14. According to the father, he had discussions with his sons in March 2015 about proposed travel to the United States with him in 2015. In his affidavit, the father says that he discussed the children travelling with him for six or seven weeks in 2015 and that in the course of a conversation on 4 April 2015 the elder son X told him that the mother had said seven weeks would be a long time and he (X) “kind of agree[d]”.

15. On 6 April 2015 the mother wrote to the father, indicating that she and the children intended to travel to the United States for three weeks in July/August 2015 and attached the proposed details and sought the father’s consent for the release of the children’s passports. In that letter the mother noted that as the children had not seen the father for 18 months she was happy for him to visit her and the children at her destination in State E or he could collect them and have them for a week to visit his family. The mother enclosed an authorisation for the release of the children’s passports for completion by the father. The letter written by the mother was in similar terms to a letter sent by the father when he sought the mother’s consent to travel with the children to the United States in 2013.

16. On 10 May 2015 the mother received a text message from the father, indicating that he intended “keeping the arrangement made by court order” and noting that “2015 is my year to travel with the kids, not yours”. The father also indicated to the mother that he had sent a number of emails concerning the issue of his travel in 2015, but as the mother had blocked his email address she had not received them.

17. On 18 May 2015 the mother commenced these proceedings, seeking final orders that the order of 19 September 2012 in relation to the children’s passports be discharged and that she be permitted to hold all of the children’s passports. The mother also sought interim orders that she be permitted to travel to the United States  with the children during a three-week period from July to August 2015 and that the Registry release the children’s passports to her to facilitate the travel.

18. The father then describes himself as making an “offer” to the mother in relation to travel to the United States with the children in 2015. Pursuant to that offer he proposed that he would travel with the children in the United States for six weeks during the school term and that the mother could also travel with them for two weeks during the September/October school holidays.

19. Essentially, it is father’s position, which is also contained in the final orders he seeks, that he should be permitted to travel with the children for six and a half weeks from mid-August 2015 (during the school term) and that the children’s passports be released to him for travel during this time. He proposes to return the passports to the Parramatta Registry by 25 September 2015. He also seeks an order that the children’s passports not be released to the mother prior to 31 December 2015 and that neither party shall apply for a change in the parenting orders until after 31 December 2015.

20. In the course of the hearing the father indicated that while it was his prime position that the mother’s application the dismissed, he was prepared to consent to the mother’s upcoming travel with the children to the United States in July on condition that he was permitted to travel with the children for six and a half weeks as proposed in August to September 2015. Ultimately he withdrew the conditional position and sought only that the mother’s application be dismissed.

The Submissions

1. It is the mother’s case that it is in the children’s best interest for them to be able to travel with her in July 2015 and spend time with extended family. While the final parenting orders and subsequent consent orders provided for the mother to take the children overseas in 2014 she was unable to afford this travel at the time, partly because the father chose to leave Australia and has not paid any child support or her costs of his unsuccessful appeal despite a court order. In addition, the mother says that she has offered that the children spent one of the three weeks in the United States with the father and his family if he wishes and this would be of advantage to the children especially as the father has not seen them for 21 months.

2. The mother also submits that she was granted sole parental responsibility and it is apparent from the Reasons for Decision that this is in a large extent due to the father’s obsessive and compulsive personality and inability for him to work cooperatively with her regarding the children. The mother submits that the father’s refusal to allow her to travel to the United States with the children is also an example of his controlling behaviour in that he is seeking to prevent her visiting her family who she has not seen for almost three years. She submits that her planned trip to the United States does not interfere with any time provided for under the orders for the father to spend with the children.

3. It is the father’s case that if the children are to travel overseas with the mother during the three weeks she proposes and he exercises his “entitlement” to spend 40 days with the children overseas then they have almost 10 weeks overseas during school time which is not in their best interests. He was also initially concerned that the mother may not consent to his proposed six and a half weeks of travel and sought to link the two proposals and only consent to the mother’s proposal on the basis that the court make orders permitting his proposed travel. When it was indicated that I was only dealing with the mother’s application at this stage he simply sought to have it dismissed on the basis that it was not in accordance with the orders.

The law & Discussion

1. The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[2].

   [2] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346

2. In applying the law to the uncontested facts, the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting. The objects are to ensure that the best interests of the children are met in particular ways such as:

   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;

   d)ensuring that parents fulfil their duties, and meet their responsibilities concerning the care, welfare and development of their children.

3. The principles underlying these objects include:

   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; and

   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); and

   c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   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).

4. Section 60CA 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.

5. This is a very limited application where there is no proposal to vary the mother’s sole parental responsibility for the children, their residence or any of the orders relating to the children’s time with their father.

6. In applying the s 60CC considerations to this application in determining what is in the children’s best interest I will only refer to those matters that directly arise.

7. The primary considerations, which are contained in subsection (2), 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.

8. The need to protect the child from physical or psychological harm does not arise in this application.

9. In my view, the mother’s proposal that the children spend one of the three weeks in the United States with the father and the paternal family, if he wishes for that to occur, will give them the benefit of sharing some relationship with their father and his extended family.  Although it does not amount to sharing a meaningful relationship, this time together will benefit them.

10. The views of the children are not known though the mother says that they are looking forward to spending time with her and their extended family on this trip. The father does not challenge this assertion that the children are looking forward to this travel.

1. The current nature of the relationship between the children and each of their parents is not known though the mother has been their sole carer since for three years. The Magistrate who determined the parenting dispute found that the children had their closest emotional attachment to their mother,[3] but found that the children were also attached to both parents, loved each of them and enjoyed time with their father.[4] There was also a reference to the father continuing to be “unavailable physically” to the children and it is undisputed that he has not seen them in almost two years.

   [3] Scranton & Scranton [2010] FMCAfam 1160 at [241]

   [4] Scranton & Scranton [2010] FMCAfam 1160 at [239]

2. Since the parenting orders were made the father initially spent time with and communicated with the children as provided for in those orders and though the mother was given sole parental responsibility for them the parents did cooperate at some level to make decisions concerning overseas travel in September 2013.

3. The mother has been fully responsible for fulfilling her obligation to maintain the children and the father has made no contribution in this regard since his departure in September 2013.

4. This is not a matter where the issue of a change in the children’s circumstances is relevant, nor is the issue of the practical difficulty and expense of the children spending time with and communicating with their father, as the proposed interim orders are directed to a very limited issue.

5. The issue of the children’s background, culture and traditions does arise in the sense that the orders relating to travel provides for an opportunity for each of the parents to continue the children’s connections with their American heritage and family by allowing for the parents to travel with the children in alternate year to the United States. The parent’s subsequently agreed to amend these orders allowing for further extensive travel both in terms of the duration and the countries to be visited. Clearly, each of the parents regards the children’s ongoing connection with their extended family heritage as a matter of importance.

6. In my view, the provision for alternate years was a practical measure provided to facilitate the enjoyment of extended family, lifestyle, culture and traditions. It is consistent with allowing the children to enjoy these traditions to permit them travelling rather than to allow the orders to be used in a restrictive way and prevent them to travel. This is particularly so when the reason that the mother did not travel in 2014 was because she had insufficient money to do so and in circumstances where she is offering for the children to spend one of the three weeks of proposed travel with the father and his family.

7. In my view the issue of the each of the parent’s attitude toward the responsibility of parenthood is a significant consideration in this matter. Initially I had some concerns about the propensity of both parents to take the children out of school for the purposes of international travel particularly as they grow older and I required the mother to make some enquiries about the possibility of alternative arrangements during the upcoming school holidays rather than during term time. The mother gave oral unchallenged evidence that she would incur an addition $8000 if the travel arrangements were to be changed, which she could not afford. She said that she had chosen the particular dates as the tickets were less expensive and it did not occur to her initially that she required the father’s permission for this travel as he had left Australia one and a half years ago and had not exercised his time with the children under the orders. The mother gave evidence that she had contacted the school to arrange for homework to be issued to the children so they could keep up their studies while away.

8. The father’s attitude towards the responsibilities of parenthood in my view is concerning. When he chose to leave Australia permanently in September 2013 he did not seek to change the parenting orders then in place even though those orders were made in the context where he was also living in Sydney and would spend regular time with the children including each alternate weekend and in block periods during the holidays. It seems that he regarded it as in the best interests of the children to spend 40 days with him each alternate year even if those 40 days fell entirely within the school term. His failure to pay child support to the mother since relocating to the United States and in not paying her costs as ordered by a court also reflect poorly on him. In my view it is also unreasonable for him to fail to spend time with the children as provided under the orders for their benefit and yet insist on strict adherence to the orders by the mother, even though the travel (although not at an ideal time) will undoubtedly benefit the children and give them an opportunity to spend time with their extended paternal and maternal family.

9. So far as the father’s proposed orders are concerned, that the mother provide an email address and a telephone number for the purposes of contact regarding travel arrangements, the mother agreed under some limited cross-examination that the issue of contact, for the limited purpose of making arrangements for the children, did need to be sorted out.

Conclusion

1. There are some unfortunate features of the mother’s application such as purchasing the tickets for international travel first and then seeking the father’s consent and proposing travel during school term time.

2. However, on an application of the best interests consideration, I am of the view that it is in the children’s best interests to travel to the United States for three weeks as proposed by the mother. It will, in my view, give an opportunity for them to spend some time with the father in circumstances where it seems beyond doubt that they do benefit from having a meaningful relationship with him. The children, who are teenagers, appear to be looking forward to the proposed travel and it will give them an opportunity of developing their relationship with extended family and their parents’ traditions.

3. In my view it was reasonable for the mother to have expected that the father would consent to the proposed arrangement, even though it was not in accordance with the final parenting orders or consent orders in circumstances where he had left Australia himself in September 2013 and not sought to amend the parenting arrangement or to provide his sons with the benefit of spending time with him under those orders.

4. In circumstances where the mother and children have not had a trip to the United States for almost three years, particularly as travel in 2014 was unaffordable due to the mother having to solely support the children herself, it would operate as an injustice to the children and the mother if she was not permitted to travel with them as she proposes. In my view it is in the children’s best interests for the mother to be permitted to travel with them and accordingly I made the interim orders as sought by her on 15 June 2015.

5. Although the mother has understandably experienced considerable difficulties with the father’s style of communication, it is in my view nonetheless in the children’s interest for their parents to be able to communicate with each other particularly as international travel is involved. For these reasons I made two of the interim orders as sought by the father and otherwise dismissed the interim orders sought by him in his Response.

I certify that the preceding fifty four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 29 June 2015.

Legal Associate: 

Date:  29 June 2015