SHORT & KEANE

[2015] FCCA 2891

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHORT & KEANE [2015] FCCA 2891

Catchwords:
FAMILY LAW – Children – overseas travel – international travel – where mother wishes to take child to (country omitted) for a family reunion and holiday – one child aged 5 years 10 months – best interests of the child – where father opposes child being taken out of school for the purposes of a holiday – where father opposes the length of time when the child will be out of school.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 65Y

Cases cited:
Bright & Bright v Bright & Mackley (1995) FLC 92-570
Kuebler & Kuebler (1978) 4 Fam LN 4; FLC 90-434
In the Marriage of Line (1996) 21 Fam LR 259; (1997) FLC 92-279
Rice & Asplund (1978) 6 Fam LR 570; (1978) FLC 90-725

Applicant: MS SHORT

Respondent: MR KEANE

File Number: SYC 890 of 2014

Judgment of: Judge Scarlett

Hearing date: 22 October 2015

Date of Last Submission: 22 October 2015

Delivered at: Sydney

Delivered on: 23 October 2015

REPRESENTATION

Applicant: In person

Solicitor for the Respondent: Mr Griffiths

Solicitors for the Respondent: Family Legal

ORDERS

UNTIL FURTHER ORDER

1. The Applicant Mother is permitted to take the child X born (omitted) 2009 out of Australia for the purposes of a holiday in (country omitted) from Sunday 8 November to Friday 27 November 2015.

2. That Teddington Legal or such other person or entity holding the passport of the said child X must release the child’s passport to the Applicant forthwith.

3. The Mother must return the child X to Australia no later than 27 November 2015.

4. Within seven (7) days of the return of the child X to Australia the Mother must contact the Father to negotiate a suitable amount of make-up time to compensate the Father for the number of days missed whilst the child is out of Australia.

5. As provided by Section 11F of the Family Law Act 1975 the parties are to attend a Child Dispute Conference at a time and place appointed by the Director of Child Dispute Services at the Sydney Registry of the Court and in accordance with Section 11C of the Family Law Act 1975 the Conference is to be reportable.

6. The substantive Application is adjourned to Monday 7 December 2015 for mention before Judge Monahan at 10:00 am.  

IT IS NOTED that publication of this judgment under the pseudonym Short & Keane is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 890 of 2014

MS SHORT

Applicant

And

MR KEANE

Respondent

REASONS FOR JUDGMENT

Application

1. This is an application by the mother of a little girl named X to take her out of Australia for a holiday in (country omitted), from the 1^st of November to the 27^th of November this year.  X was born on (omitted) 2009 and is therefore just under six years old.  The Father opposes the application because the proposed trip will take place in school term time and the child will therefore miss over three weeks of school.  His position is not that the child should not travel to (country omitted) with the Mother but that is not good for the child to be away from school for an extended period of time.

2. I note that in this case the Principal of the child’s school has given approval for the child to be away from school for that period of time. 

3. The purpose of the proposed trip is for a family reunion in (country omitted).  The Mother is particularly keen for her daughter to meet her grandmother, the child’s great grandmother, who is gravely ill.  The Mother says that she has been attempting to negotiate with the Father since March of this year.

Background

1. The background to this matter is that the proceedings were commenced in 2014 and were returnable before his Honour Judge Monahan.  On 18^th July 2014 his Honour made orders by consent on a final basis relating to parenting issues.  Those orders are substantial and quite detailed. 

2. The substantive application before the Court today was filed on 15^th October this year.  The final orders sought seek to discharge the consent orders made on 18^th July 2014 and seek a considerable number of specific parenting orders.  It is unnecessary to deal with those proposed orders at this stage.

3. I would comment, however, that Mr Griffiths, who appeared for the Father yesterday and appears today, has made the point, with some force, that where there is a case that the applicant is seeking to vary parenting orders that were made some 15 months ago that there will be some thought given by the court to what is known as the rule in Rice & Asplund[1], which is a rule that the Court will be reluctant to change parenting orders, however arrived at, unless a party can show that there has been a change of circumstances significant enough to warrant the question of parenting orders being reopened.

   [1] (1978) 6 Fam LR 570; (1979) FLC 90-725

4. The Court does not have to deal with this application today but the matter will be considered in some detail on a later occasion, as the orders that are sought are orders that were made before Judge Monahan in a matter that was in his docket.  In my view the application for final orders properly belongs in his Honour’s docket, and after I have dealt with the interim issues today the matter will be listed for his Honour’s attention on a date early in December.  I will, however, make some procedural orders so that the time is not lost, but my concern today, as it was yesterday, are the interim orders sought by the Mother.

5. The Mother sought leave to serve short notice and sought a determination of the application on an urgent basis.  The application, as I said, was filed on 16^th October and in the circumstances I directed that it should be returnable yesterday, the 22^nd.  The application is supported by an affidavit by the Applicant, filed that same day.  I made directions for short service, and the Respondent’s solicitor has moved, admirably quickly, in drawing and engrossing a response and an affidavit of some size by his client.  The affidavit, I note, was affirmed on 20^th October and the response and the affidavit were filed the next day.  Would that all applications before the Court be the subject of such prompt responses.  Regrettably that is not the case.

Orders Sought

1. The Mother’s application, leaving aside the procedural matters, consists of an application for five orders, which are numbered 3 through to 7.  They are:

   3)that the Mother be permitted to travel with X to (country omitted), from Sunday the 1^st of November 2015 to Friday the 27^th of November 2015 and that provide make‑up time to the father; 

   4) that, to give effect to order 2, X’s passport be released to the mother; 

   5) that the father have make‑up time with X equalling the days missed by the father while X is travelling with the mother, pursuant to order 3 above; 

   6) that X be returned to the mother no later than 6 pm Saturday 30^th of October 2015 (indistinct) X is spending time with the father that weekend; 

   7)costs of this application.

2. The Father’s response is succinct.  In respect of both the final orders and the interim orders sought, the Respondent seeks the following orders: 

   1)that the application be dismissed;

   2)that the Applicant pay the Respondent’s costs of and incidental to these proceedings. 

Evidence

1. The Mother, as I said, relies on her affidavit, which was sworn on the 15^th of October and filed on the 16^th.  The Father relies on his affidavit, affirmed on the 20^th and filed on the 21^st of October.

2. The Mother’s affidavit is relatively lengthy and deals not only with the matter that is before the Court today but with the substantive issues.  Obviously, I am more concerned with the interim matters. The Father’s affidavit in reply is also of significant length, although a number of paragraphs just relate to a formal reply to matters in the Mother’s affidavit.

3. The background to this matter is briefly set out in the Mother’s affidavit and her Application. The Mother was born on (omitted) 1973.  She is originally from (country omitted).  The Father was born on (omitted) 1978.  The parties commenced the relationship in 2005 and separated in January 2013.  There is a child of the relationship, X, who was born on the (omitted) 2009.  X lives with the Mother and spends time with the Father.  The Mother has another younger child, a son, and lives with her partner.

4. The Mother deposes, correctly, that overseas travel is governed by the consent orders that the parties entered into on 18^th July 2014.  There have been some occasions of overseas travel, including a visit to the (country omitted).  This proposed trip, however, is to (country omitted), and it is the Mother’s evidence that it relates to an extended family reunion in (country omitted) which would involve not only members of her extended family from within that country but also travelling from various parts of Australia.

5. The Mother deposed that she has been negotiating with the Respondent, without success, since early March this year.  There have been emails sent by one party to another, and, indeed, a solicitor, acting for the Mother during the year sent letters to the Father’s solicitor and there is a chain of correspondence annexed to the Mother’s affidavit from July through to late September this year.  The Mother, in fact, deposed that on 23^rd September she attended a family relationships centre in relation to a mediation.

6. The circumstances of this matter are that the Mother says that her family in (country omitted) advised her of a maternal family reunion in that country to occur in mid‑November 2015.  It is to coincide with a number of members of her family travelling from various parts of (country omitted) and Australia to be in (country omitted) at this time.  The Mother also deposed at paragraph [20] of her affidavit that her grandmother is also gravely ill and the family have planned this also as an opportunity for her to meet her great grandchildren as well as say goodbye to family who are not able to visit her on a regular basis.

7. The Mother goes on to depose that her grandmother suffers dementia and her condition has been deteriorating substantially over the past 12 months.  Doctors have advised her family that her condition is such that a prognosis beyond early to mid‑next year is that she may pass away as a consequence of the disease or of old age.  The Mother goes on to depose that she wants her grandmother and her other extended family in (country omitted) to meet her daughter and son.  She also wants to see her grandmother before she passes away as she is close to her and she lived with her up until the age of six.  A number of her immediate families are travelling from Australia for this occasion, including her mother, her stepfather, her sister‑in‑law and her nephew.

8. The Mother goes on to set out, in great detail, the email correspondence between the Father and her directly, and the correspondence between the solicitors.  It is unnecessary for the Court to go through this correspondence, save to note that it was extensive throughout a large part of the year.  Significantly, the Mother deposes at paragraph [25] of her affidavit that (omitted) Public School has approved leave for X for the purpose of this travel to (country omitted).  The Mother and her partner have arranged flight bookings but need to confirm those bookings and, as the time for the proposed travel is rapidly approaching, need to have some finality.

9. I might comment that it would have been desirable if the Mother had come to the view, somewhat earlier, this was a matter that needed to be decided by the Court rather than bringing an application in what could be described in the vernacular as almost the last moment.  Unfortunately, this Registry of the Court, and Registries in other capital cities in particular, experience a rush of applications by parties for orders seeking that they should be permitted to take their child out of the country for a purpose of a holiday elsewhere.  This is, I might comment, the third judgment of this nature that I have handed down this week.

10. What of the Father’s position? The Father, as I said, with the aid of his solicitor, ran up a significant affidavit in a short period of time. He deposes that he is in a long‑term relationship with a lady who has three children of her own from a previous relationship. His position is set out quite clearly in paragraph [11]. He says:

    I state that I do not oppose the Applicant travelling to (country omitted) with X as long as such travel does not take place during school terms and the child is not absent from school as a consequence[2].

    [2] Affidavit of Mr Keane 20.10.2015 at paragraph [11]

11. He then goes on to annexe email correspondence relating to that issue.  The Father further goes on, paragraph [12], to say:

    I state that I am neither obstructing nor controlling, as the Applicant alleges, but rather I am quite accommodating.  As regards overseas travel, I advised the Applicant that I would agree to X travelling overseas on certain conditions.  Those conditions are, in my view, in X’s best interests[3].

    [3] Ibid at [12]

12. The Father goes on to say, at paragraph [15], that he was contacted by a staff member of Relationships Australia by telephone in about September of this year, and was asked if he was interested in attending mediation.  He asked what the mediation was about but was told that that information could not be divulged.  But he said:

    However, I suspected that the mediation would be with respect to the Applicant’s travel plans.  I informed the staff member that I would contact my lawyer and discuss the mediation and get back to her.[4]

    [4] Ibid at [15]

13. The Father went on to depose that after he had obtained legal advice he contacted Relationships Australia and on 9^th October he attended a pre‑mediation interview. On 15^th October he was contacted by telephone and was advised by the proposed mediator that as there were recent existing final court orders the matter would not require mediation. The Father deposes at paragraph [25] of his affidavit that he was not made aware of the Applicant’s application to the school as she did not provide a copy of the application, or of the flight booking attached to the application.

14. He commented that the Applicant booked the flights prior to the school approving the application for extended leave.  He refers to overseas travel for X, not just to (country omitted) on this occasion but to the (country omitted), and makes formal replies to other matters in the Applicant’s affidavit.

15. The Court heard submissions from the mother and from Mr Griffiths, who appeared for the Father.  The Mother told the Court that she had attempted to come to some agreement with the Father.  She said that they had given him eight months’ notice and they had booked the flights at a time when she had just had a baby, which has apparently suffered some medical issues, and in the circumstances it was not possible to commence negotiating with the Father for about a month due to the other issues that were pressing.

16. She referred to the existing consent orders, particularly order 18.  She denied that she is acting unilaterally.  She made the point that the dates of this proposed family reunion were not of her doing.  As she said, “It wasn’t up to me.”  This was done by her family in (country omitted).  She did make the point that she thought it was in X’s best interests to go to (country omitted) and to meet her grandmother, with whom she, the Mother, has been very close.  She expressed the view that if they had eight months they should have had significant time to have made arrangements.  Her partner it was, she said, that made the bookings.  She said if X is not permitted to go then the family, as a whole, will not go.

17. It is clear that the Mother's attachment to her grandmother is strong.  The lady herself, I am told, is 89 years of age and the Mother lived with her until she was six or seven years old, and her grandmother brought her up.  It is not surprising that the Mother feels a strong emotional reason for visiting her grandmother and taking her daughter to see her.  In fact, the Mother said she and her partner thought was a really good opportunity for X to see extended family in (country omitted), to spend time in the country from where her mother hails, and also to be in a (language omitted) speaking environment.  The Mother submitted, although the Father specifically denied, that the Father had not been particularly interested in the Mother’s culture or first language.

18. Mr Griffiths, for the Father, referred the Court to the orders that were made, including those orders that related to equal shared parental responsibility, and spoke critically of the Mother’s failure, in his client’s view, to comply not only with the meaning of the orders but with the spirit of them.  The Father is of the view that the Mother acts unilaterally, and that whilst, in his view, he is prepared to negotiate the Mother keeps changing arrangements and, in his view, doing what she wishes to do.

19. Mr Griffiths, quite properly, put that the Father’s main concern was about the child being away from school for that period of time.  It is not travel to (country omitted), per se, to which the Father objects.  Mr Griffiths said, quite clearly, to the court, “My client does not want to prevent the applicant from travelling to (country omitted) but says it should be in the school holidays.”  He made a point that the Father does not oppose the proposed travel to (country omitted).  It is the timing rather than the circumstances that creates the difficulty for the Father.

Consideration

1. In some ways this is a different case from many that the Court hears.  It is not a case where a party expresses a fear that the other party who wishes to take the child out of Australia may not return the child to Australia.  The Father has never once raised that concern, and clearly that is not the issue.  This means that the Court has not been referred, and need not be referred, to cases such as Kuebler & Kuebler[5] and In the Marriage of Line[6] where the Full Court of the Family Court looked at the purpose of fixing an appropriate level of security for the return of children to Australia, and also looked at various issues which would indicate whether or not the travelling parent is likely to return to Australia.

   [5] (1978) 4 Fam LN 4; FLC 90-434

   [6] (1996) 21 Fam LR 259; (1997) FLC 92-279

2. I comment, in passing, that (country omitted) is a party to the Hague Convention on the Civil Aspects of International Child Abduction, but it was not put by the father that that is an issue that need concern the court.  Of course, when a court is considering an application to take a child out of Australia it is not the only matter to be considered, being the amount of security to be set to go toward the cost of proceedings to bring about the child’s return.  There are parenting orders in force.  Those were the orders made by his Honour Judge Monahan in July last year.

3. It is an offence under section 65Y of the Family Law Act 1975 (Cth) to take a child out of Australia when parenting orders are in force, without either the written consent of the other party to the proceedings or an order of a court of competent jurisdiction. That is why the mother is here. In all cases involving taking children out of Australia the court must consider:

   a)whether or not it is in the child’s best interests to leave Australia at all; and

   b)the circumstances of the proposed travel.

4. It is not unknown for a court to decide that a child should not travel to a particular part of the world because the circumstances in that place would pose a threat to the child’s safety.  It is not put by the father that this is such a case.  Whilst Mr Griffiths, perhaps with some hyperbole, submitted that the Court and the Father did not really know where it was that the child was going to be in (country omitted).  In my view the evidence is that the child will be in a family situation with her mother and extended family and there is no evidence before me of any threat to the child’s safety. 

1. It gets back to the circumstances of the proposed travel, particularly the timing. 

2. The timing is significant for two reasons:

   a)the fact that the proposed travel is entirely within school term time; and

   b)the length of time that the child is to be out of Australia.

3. The length of time that the child is to be out of Australia is significant because there is also the length of time that the child will not be spending time in the company of her father. 

4. These are the issues, to my mind that are relevant.  I note the age of this little girl.  She is nearly six.  She has been in kindergarten school, and the school principal seems not to have a problem with this girl being away for that length of time.  The Father is concerned about it even with a child as young as X.  One might ask, rhetorically, would the same considerations apply if this child was in year 6 at primary school, or year 10 at high school. 

5. The travel time, of which I can take judicial notice, is relatively lengthy and that, of course, can be tiring for a young child and there would be a need for her to adjust, not only to get over the fatigue of travel but to adjust to a different time zone, different water, and different climate.  She will certainly be able to do so but she will need time to do just that. 

6. The concern, of course, is the thrust of the Father’s opposition that the timing is wrong.  Of course, it has been put that this little girl could go in the Christmas school holidays.  She could spend time in (country omitted) then.  She could see her great grandmother then.  Whilst it is put the grandmother is quite elderly, seriously ill, and does not have a lengthy prognosis, it is certainly not put that the grandmother only has a few short months to live.  One hopes that that is not the case.   This gets back to the mother’s point that she did not set the timing.  The timing was set by her extended family in (country omitted) for all the family to come together, not only from within (country omitted) but from Australia, so that there could be a large family reunion. 

7. Now, I think there is some point in saying that it would be to a child’s best interest to spend time with extended family.  It is in a child’s best interest to become aware of the circumstances of her heritage on each side of the family, her mother’s (country omitted) heritage but also her father.  Her father was born in the (country omitted).  She should be able to have the advantage of both.  It is unfortunate that this particular event has been arranged at a time that will take the child out of school which is the reason, or the main concern of the father as to why the trip should not take place at this time. 

8. The father has been at pains to stress, and his solicitor has been at pains to stress that he is not objecting to travel to (country omitted) per se.  That has never been the father’s case.  But it is the timing and the circumstances.  This gets back to the best interests of the child.  The Court considers the benefit for the child having a meaningful relationship with both parents. The Court considers relationships of the child with grandparents and extended family members under subsection 60CC (3) of the Act.  There is also a decision of some age now, of the Family Court in Bright & Bright v Bright & Mackley[7] where his Honour, Treyvaud J spoke of the advantage to a child of knowing that she was part of an extended family, that was part of her place in the world.

   [7] (1995) FLC 92-570

9. I take all of these things into consideration.  The Father does have a concern about this child being taken out of school for this length of time.  It is unlikely that throughout this little girl’s career at school that he will change that view to any great extent.  Indeed, as she progresses through primary school and up into high school, he will be more and more concerned about proposals to take the child out of school for any length of time.  It is not hard to understand why.  It is interesting that the principal of the child’s school does not see a problem with her travelling so that she is out of school for that length of time in November.  The Court is not necessarily as sanguine as that. 

Orders

1. I have to weigh up all these considerations. The timing of the trip to (country omitted) is not specifically of the Mother’s doing but of her family’s doing. Certainly, if she is not allowed to take X, she will not go. That, again, is understandable. A trip of this nature, certainly on its face, would appear to be in a child’s best interests but again the length of time is a matter of some concern. I have given some particular thought to the child’s best interests and the child’s best interests in any parenting case must be the paramount consideration, as is specifically stated by section 60CA of the Family Law Act 1975.

2. Looking at the Mother’s evidence, the family reunion which is the centre point of this trip is scheduled to take place in mid-November.  The Mother proposes to go on 1^st November.  One could well ask why, for an event of this nature, it is necessary to travel at least a fortnight beforehand.  There is no evidence to that extent.  My consideration is to the best interests of the child.  I am aware of the fact that she would be away from her father for a significant length of time.  The trip, of itself noting the permission of the school, appears to be desirable but perhaps, unlike the principal, I have some concerns about the length of time.  In my view, it is about a week too long and I propose to order accordingly. 

3. I can indicate that I am ordering a Child Dispute Conference to deal not with this issue, but with the substantive application to vary the parenting orders about which I have spoken, and which will be occupying the attention of my brother Monahan on 7 December. 

4. As I said, Judge Monahan, who originally had this matter, will be looking at the substantive parenting issues which will take place in more detail on 7^th December and I am hoping that by then that there will have been a Child Dispute Conference and there will be a Child Dispute Conference Memorandum available.  The parties may not be aware of it but such a memorandum is helpful to parties’ lawyers and particularly helpful for the Court.   I thank everyone for their time and I propose to adjourn.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  27 October 2015