FEDERAL CIRCUIT COURT OF AUSTRALIA
| SECCO & REID | [2013] FCCA 2160 |
| Catchwords: FAMILY LAW – Children – relocation of child to (country omitted) for 3 years with mother and sister consequent upon mother’s posting – impact upon child of separation from father – impact upon child of separation from mother and sister – weighing up of competing applications. |
| Legislation: Family Law Act 1975 |
| Hepburn and Noble [2010] FamCAFC 111 Heath v Hemming (No 2) [2011] FamCA 749 |
| Applicant: | MS SECCO |
| Respondent: | MR REID |
| File Number: | CAC 1283 of 2008 |
| Judgment of: | Judge Henderson |
| Hearing dates: | 18, 19 & 20 November 2013 |
| Date of Last Submission: | 20 November 2013 |
| Delivered at: | Sydney |
| Delivered on: | 13 December 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ridge |
| Solicitors for the Applicant: | Barker & Barker |
| Counsel for the Respondent: | Ms Curran |
| Solicitors for the Respondent: | Evans Family Lawyers |
ORDERS
Orders 4 to 14 inclusive of the Orders dated 16 December 2009 in relation to the child X born (omitted) 2005 be suspended for a period of 3 years commencing 27 January 2014.
The mother shall have sole parental responsibility for the child pending his return to live in Australia.
The mother shall inform the father of the school the child attends and all medical treatments performed on the child.
The mother be permitted to take the child out of the Commonwealth of Australia from 27 January 2014 for the duration of her posting to (country omitted).
From 27 January 2014 until 28 February 2017, the child spend time with the father in Australia as follows:
(a)For all of the child’s school term holiday periods being periods of approximately 2 weeks in each of April and December/January;
(b)For 4 weeks in the northern hemisphere Summer school holidays;
(c)For such times as are agreed during any period when the mother returns on leave to Australia;
(d)In (country omitted) at any reasonable time that the father notifies the mother in advance being 28 days and the mother will vacate her home and permit the father to live in her home in (country omitted) for no longer than 14 days unless otherwise agreed; and
(e)At any other time and place as agreed.
The father communicate with the child by telephone, Skype, email and written communications at any reasonable time.
Until the child reaches age 10 the mother is to ensure he is accompanied by his sister Y or another responsible adult for his flight from (country omitted) to Australia.
In the event the mother is unable to comply with Order 7 she is to pay:
(a)The father’s return flight economy class tickets to the transit destination for the final leg of the child’s…
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- Secco and Reid [2013] FCCA 2160
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- [2013] FCCA 2160
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CaseChat Overview and Summary
The court was required to determine whether to suspend existing orders concerning the child X, and if so, for what period. Further issues included the allocation of parental responsibility, the mother's ability to take the child overseas for a period of three years due to her posting in a foreign country, and the specific arrangements for the child to spend time with the father both in Australia and overseas. The court also considered communication arrangements between the father and the child, and provisions for the child's travel, including requirements for accompaniment until a certain age and potential financial consequences for the mother if these were not met.
Judge Henderson reasoned that it was in the child's best interests to suspend the existing orders for a period of three years, commencing 27 January 2014, to accommodate the mother's overseas posting. The court applied principles of the *Family Law Act 1975*, particularly section 65DA(2), in making its determination. The mother was granted sole parental responsibility pending the child's return to Australia and was permitted to take the child overseas. Detailed provisions were made for the child's time with the father, including during school holidays and summer breaks, and for the father to reside at the mother's home in the foreign country for limited periods. Communication by various electronic means was also facilitated. Specific requirements for the child's travel, including accompaniment by a responsible adult until the age of 10, were ordered, with financial penalties stipulated for the mother in the event of non-compliance.
The court ordered the suspension of existing orders for three years from 27 January 2014, with the mother having sole parental responsibility and permission to take the child overseas. Specific contact and communication arrangements were detailed, along with provisions for the child's travel and potential financial consequences for the mother.
Orders
Orders of the court
1.
Orders 4 to 14 inclusive of the Orders dated 16 December 2009 in relation to the child X born (omitted) 2005 be suspended for a period of 3 years commencing 27 January 2014.
2.
The mother shall have sole parental responsibility for the child pending his return to live in Australia.
3.
The mother shall inform the father of the school the child attends and all medical treatments performed on the child.
4.
The mother be permitted to take the child out of the Commonwealth of Australia from 27 January 2014 for the duration of her posting to (country omitted).
5.
From 27 January 2014 until 28 February 2017, the child spend time with the father in Australia as follows:
(a) For all of the child’s school term holiday periods being periods of approximately 2 weeks in each of April and December/January;
(b) For 4 weeks in the northern hemisphere Summer school holidays;
(c) For such times as are agreed during any period when the mother returns on leave to Australia;
(d) In (country omitted) at any reasonable time that the father notifies the mother in advance being 28 days and the mother will vacate her home and permit the father to live in her home in (country omitted) for no longer than 14 days unless otherwise agreed; and
(e) At any other time and place as agreed.
6.
The father communicate with the child by telephone, Skype, email and written communications at any reasonable time.
7.
Until the child reaches age 10 the mother is to ensure he is accompanied by his sister Y or another responsible adult for his flight from (country omitted) to Australia.
8.
In the event the mother is unable to comply with Order 7 she is to pay:
(a) The father’s return flight economy class tickets to the transit destination for the final leg of the child’s journey from (country omitted) to Australia; and
(b) The father’s return flight economy class tickets to the transit destination being the first leg of the child’s return flight to (country omitted).
9.
Upon the child reaching age 10 the mother may allow the child to travel as an unaccompanied minor internationally.
10.
Pursuant to section 65DA(2) of the Family Law Act 1975, 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 Attachment A and these particulars are included in these orders.
Background
Background to the litigation
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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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