Shellard & Shellard
[2021] FedCFamC1F 216
•22 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Shellard & Shellard [2021] FedCFamC1F 216
File number(s): SYC 4814 of 2021 Judgment of: CHRISTIE J Date of judgment: 22 November 2021 Catchwords: FAMILY LAW – INTERIM ORDERS – With whom a child spends time – Habitual Residence – Overseas Travel – Unaccompanied Minor – COVID-19 Legislation: Family Law Act 1975 (Cth) ss 65Y, 65YA Division: Division 1 First Instance Number of paragraphs: 45 Date of hearing: 19 November 2021 Place: Sydney Solicitor for the Applicant: Ms Santo, Santo Family Lawyers Counsel for the Respondent: Ms Spain Solicitor for the Respondent: Michael Conley Lawyers ORDERS
SYC 4814 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SHELLARD
Applicant
AND: MS SHELLARD
Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
22 NOVEMBER 2021
THE COURT ORDERS THAT, PENDING FURTHER ORDER:
1.That pursuant to s 65Y of the Family Law Act 1975 (Cth) (“the Act”), the mother is authorised to make arrangements to remove and remove the child X (born … 2010) (“X”) from the Commonwealth of Australia for the purpose of spending time with her pursuant to these orders.
2.That X live with the father.
3.That X spend time with the mother in Country B leaving Australia on 14 December 2021 and returning to Australia on 18 January 2022.
4.That the father provide X with his Australian passport to enable his travel to Country B.
5.That in the event that X is not to be accompanied by his siblings Ms C (born … 2002) or Ms D (born … 2002) or either of them on either the flight to Country B from Australia or the flight from Australia to Country B, the mother notify the father within 48 hours of herself being informed and provide him with written information about the unaccompanied minors arrangements.
6.If matters beyond the mother’s control prevent X from returning to Australia on 18 January 2022 the mother will ensure that X takes the next available flight from City E to Sydney.
7.The Court declares that Australia is X’s place of habitual residence.
8.The father’s interim application filed 30 June 2021 as amended by his outline of case and the mother’s interim response filed 16 August 2021 as amended by her outline of case, are otherwise dismissed.
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 Shellard & Shellard has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
This is an application for interim parenting orders.
On 30 June 2021 Mr Shellard (“the father”) filed an Initiating Application.
On 16 August 2021 Ms Shellard, (“the mother”) filed a Response to the Initiating Application.
The parties have four children: Ms D (born in 2002, age 20) (“Ms D”), Ms C (born in 2002, age 20) (“Ms C”) and Y (born in 2007, age 14) (“Y”) and X (born in 2010, age 11). The subject child of these interim parenting orders is X (“X”).
The sole issue for consideration on this interim application is, whether X should travel to Country B in the upcoming school holidays to spend time with the mother.
BACKGROUND
The parties were married in 1999 in Country G and separated on 4 September 2013 in Country B. Both during their relationship and after separation they have lived in both Australia and Country B.
Most recently in July 2021, the mother and Y moved to Country B where they now live and Y attends school.
The father, the parties’ adult children and X, live in Australia.
All of the parties’ children hold both Country B and Australian citizenship.
In the mother’s response to the Initiating Application, she seeks orders that would permit X to leave Australia for the purpose of residing permanently with the mother in Country B.
The mother’s interim application seeks an order that X be permitted to leave Australia for the purpose of travel to Country B to see and spend time with the mother and Y. The mother suggests X will be accompanied by Ms D and Ms C. The mother has purchased plane tickets for all three (3) children.
The father opposes any order permitting X to leave Australia at this stage and suggests instead that the mother spend time with X in Australia.
INTERIM PARENTING: THE LAW
An interim parenting hearing is a curtailed process. The statutory considerations applicable are, in large part, identical with those that would apply at a final hearing, but the hearing time is limited and cross-examination only possible in exceptional circumstances.
The first step is to identify the parties’ competing proposals. It is then necessary to determine from the available evidence the relevant agreed or non-contentious facts. Finally, it is necessary to understand what relevant facts are in dispute. The capacity to make findings of fact where the parties disagree at an interim stage is limited by the lack of cross-examination.
CONSIDERATION
In this case the father is not opposed to X seeing and spending time with the mother (provided that time occurs in Australia). Accordingly, the issues arising out of the evidence would appear to be:
(a)Does the mother’s proposal occasion a risk (or greater risk) to X related to COVID-19?
(b)Does the mother’s proposal occasion a risk to X that he will be unable to return home in time for commencement of the new school year?
(c)Is the fact that the trip would require X to miss the last 3 days of school term a concern?
(d)Is there a possibility that X will be required to fly unaccompanied and if so, is this acceptable having regard to his age?
(e)Does the evidence suggest that the mother will not comply with the order for X’s return to Australia?
(f)Should X have the opportunity to see and spend time with the mother and Y?
(g)Should X have the opportunity to return to Country B and see family?
An application for orders for time and permitting travel is a parenting application to which the best interest principle applies. Any order made by this Court must be in the best interests of X.
It is plain from the history of care arrangements that each parent has had the opportunity to be involved in the day to day care of their children to a greater or lesser extent from time to time, and no party gives evidence that the children do not and ought not have a meaningful relationship with both parents.
Where the parents are not living in the same country it is important (all other things being equal) that the children are given such opportunities as are reasonably practicable to see and spend time with the parent they are not living with.
This is not a case where either party raises a concern that it is necessary to protect X from physical or psychological harm that is, from being subjected to or exposed to abuse, neglect or family violence.
There is no evidence about X’s views. This is unsurprising given X’s age. This is not a matter where it is likely that the child’s views (if known) would have been given much weight. It is to the parents’ credit that (on the available evidence) neither has sought to involve X in the dispute.
In this case it is significant that X and Y are living in separate households in separate countries. Y is currently attending school in Country B and as a consequence, Y’s holidays will not coincide with X’s summer holidays (although there is some overlap).
The father proposed that the mother travel to Australia instead. The mother is not intending to travel to Australia at the end of this year. The effect then of acceding to the father’s proposal would be that eighteen months would pass where X would not see the mother or Y. From X’s perspective the mother’s reasons for declining the time in Australia are not material – the impact on him is the same.
The father’s proposal does not allow for all four children to spend time together. The father’s proposal does not allow for Y and X to spend time together (without Y being taken out of school).
The father’s proposal does not allow for X to see and spend time with extended family in Country B. The mother says that it is intended that X, Y, Ms C and Ms D would see and spend time with their maternal grandmother, aunt and cousins.
There is a significant benefit to X in seeing and spending time with his maternal family and gaining further exposure to his Country B culture.
Face to face time between the mother and X is important having regard to the (uncontroversially) good relationship between parent and child arising from the historical care arrangements.
The father has health concerns about the proposed travel. X is not vaccinated against COVID-19 (and is not currently eligible to be vaccinated in Australia).
I am concerned that the father opposes X’s travel but permitted Y’s relocation. Y travelled to Country B to live in July 2021. There is nothing in the evidence to suggest that any COVID-19 related risk would be different for one child or the other. If Y was permitted by the father to live in Country B then it is difficult to understand how he can now be heard to oppose X visiting Country B.
Absent specific evidence about a greater risk to X from COVID-19 in one specific location as opposed to risk to X in his current environment, it is not possible to conclude that travel should be prevented for health reasons. As has been observed by this Court, there is a risk of transmission of COVID-19 in Australia and abroad. To ground a finding that COVID-19 should prevent travel would require clear evidence of a specific nature about the specific risk to this child.
The father relied on data about the raw numbers of COVID-19 cases in Country B from a reputable source and a newspaper article. Together those documents indicate that there is community transmission of COVID-19 in Country B.
The father’s submissions about COVID-19 risks need to be seen in light of his position as recorded by the Court in October 2021. In essence, Notation E to the Orders of 14 October 2021 summarised the father’s position at that time:
The Court is further informed that the Father is not opposed to X travelling to Country B during the upcoming Christmas/Summer holiday period, however the Father is not currently willing to consent to such travel given the uncertainty relating to whether X will be able to travel, given current travel restrictions, without impacting his return to school in 2022…
Accordingly, the most significant issue for the father would appear to be a concern as to whether X will be able to return on the flight his mother has booked.
The parties competing applications were filed at a time Australian citizens returning to Australia were required to quarantine. As the evidence establishes, this is no longer the case.
The mother relies upon evidence in respect of recent flight arrivals into Sydney airport. This evidence demonstrates that in recent times very few flights have been cancelled. The father submitted that there is likely to be a delay in X’s return. This submission is not supported by current evidence.
It cannot be said that there is no risk that a flight may be cancelled. However, if a flight were to be cancelled, X would be with his mother and sister until such time as a new flight was obtained. The father consented to X being in the sole care of the mother between January 2021 and late May 2021 and in those circumstances a brief unavoidable (hypothetical) delay would not appear to stand in the way of the proposed trip. Built into the mother’s proposal is some flexibility to have X arrive back in Australia in advance of the commencement of the school term.
There is a related risk that X may be required to fly unaccompanied. That will arise if he cannot be accompanied by his sisters (Ms D and/or Ms C).The mother says that if his sisters are unable to accompany him, Airline F offers an unaccompanied minor service. X is an experienced international traveller for his age, although there is no evidence he has previously flown unaccompanied. There is no evidence to suggest that the airline’s program for unaccompanied minors would result in X being unattended in City H, Country J. However, it is reasonable that the father be informed promptly by the mother in the event that X will be flying unaccompanied to allow both parents to make inquiries as to the arrangements for X flying as an unaccompanied minor.
The father also raised as an impediment to the making of the orders sought by the mother the issue of the departure date (14 December 2021) requiring X to miss school for the last three days of term. It cannot be said that this fact is sufficient to prevent X from seeing and spending time with his mother, sister and extended family. As counsel for the mother observed, the father consented to X and the mother travelling for an extended period of time during the school term in 2021.
At the hearing the solicitor advocate for the father submitted that the regime for testing upon arrival back in Australia was a reason why the Court ought refuse the mother’s application. The regime requires two tests and recommends a third. Weighed against X not seeing the mother face to face for eighteen months, the testing regime would not prevent the making of the orders sought by the mother.
Another basis upon which it was suggested, on behalf of the father, that the mother’s application be dismissed was because of a history of poor communication between the parents. The father says that the mother booked the children’s plane tickets for travel without first discussing the proposed trip with him and that the first time he saw the tickets was when the mother annexed them to her affidavit. That submission however has to be seen in light of the evidence that the father told the Court (as recorded in the Notation above) on 14 October 2021 that he did not oppose X travelling to Country B but could not consent because of concerns about whether the travel would be possible given current restrictions and whether this may impact on his return. The father having indicated he was not opposed, the mother booked the tickets. That said, if the parents are, going forward, to live in different countries it will be necessary for them to develop functional communication methods.
Some of the matters that the father raises as difficulties would seem easily overcome. For example the father raises as a concern the fact that the mother lives 775 kilometres from City E airport. The parties have substantially shared the care of their children since separation eight years ago. The mother has from time to time had sole care of the children. Against this background, it cannot be safely concluded that the mother would make travel arrangements for the parties’ son X which would place him in danger.
In light of the mother’s application for final orders permitting her to make X’s place of residence in Country B the father is perhaps unsurprisingly, concerned that the mother may retain X at the end of the proposed holiday time. There is no evidence in this case by either party of failure to adhere to previous agreements concerning the children.
The solicitor for the father, in oral submissions, asked the Court to consider, if orders for travel were made, an accompanying declaration be made to the effect that X’s place of habitual residence is Australia. Habitual residence is a question of fact. It is plain that as at November 2021 X’s place of habitual residence is Australia.
Ms Spain, on behalf of the mother, did not make any submissions contrary to the proposition that X is habitually resident in Australia and I intend to make the declaration as sought.
If the mother removes X from Australia pursuant to an order permitting her to do so she will be required to ensure his return. Failure to comply with a parenting order requiring return may be an offence pursuant to section 65YA of the Act.
For the above reasons I am satisfied that seeing and spending time with the mother is sufficiently important for X and make orders accordingly.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 22 November 2021
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