Sinclair & Sinclair
[2020] FamCA 1054
•10 December 2020
FAMILY COURT OF AUSTRALIA
Sinclair & Sinclair [2020] FamCA 1054
File number(s): SYC 5085 of 2020 Judgment of: REES J Date of judgment: 10 December 2020 Catchwords: FAMILY LAW – INTERNATIONAL TRAVEL – Where the mother seeks orders to allow the children to travel internationally in 2021 – Where the mother seeks that the children spend time in Europe with her and the children’s extended family – Where the father opposes the mother’s application due to the COVID-19 pandemic – Where there was no evidence about how international travel in 2021 might be facilitated – Orders for each parent to retain the passport of one child. Number of paragraphs: 34 Date of hearing: 9 December 2020 Place: Sydney Counsel for the Applicant: Ms Clifford Solicitor for the Applicant: MGA Law Counsel for the Respondent: Ms Lawson Solicitor for the Respondent: Nicole Evans Lawyers ORDERS
SYC 5085 of 2020 BETWEEN: MR SINCLAIR
Applicant
AND: MS SINCLAIR
Respondent
ORDER MADE BY:
REES J
DATE OF ORDER:
10 DECEMBER 2020
THE COURT ORDERS, PENDING FURTHER ORDER:
1.That each parent ensures that X and Y (“the children”) have valid Australian and Country B passports at all times and do all things necessary to renew the children’s passports when required.
2.That to facilitate Order 1, the mother shall provide the children’s passport renewal documents to the father, and the father shall submit the renewal documents to the relevant authority within 48 hours of receiving them.
3.That all passports issued to X born … 2009 shall be held by the father.
4.That all passports issued to Y born … 2014 shall be held by the mother.
5.That both parents are restrained from removing the children from the Commonwealth of Australia.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sinclair & Sinclair has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Rees J:
Mr Sinclair (“the father”) and Ms Sinclair (“the mother”) are the parents of X who was born in 2009 and Y who was born in 2014 (“the children”).
The parents, who were both born in Country B, came to Australia in 2007 and have lived here since. They are both permanent residents of Australia.
Both children were born in Australia and have lived here for the whole of their lives. Both children are Australian citizens and also Country B citizens.
The parents agree that the children do not speak the language of Country B although they have some rudimentary ability in the language.
The parents separated in August or September 2018 and the children have since lived in the primary care of the mother. On 4 December 2020 orders were made by consent which will have the effect that, by 4 March 2021, the children will spend five consecutive nights each fortnight with the father. Those orders also provided for school holiday periods to be equally shared between the parents.
The children are currently on the Airport Watchlist.
The substantive proceedings relate to the mother’s wish to return with the children to live in Country B. That application is opposed by the father who proposes that, if the mother returns to Country B, the children should live with him in Australia.
These are interim proceedings and there can be no findings in relation to disputed facts. However, there is extensive common ground.
A Family Consultant has conducted a child inclusive conference and prepared a report dated 24 September 2020. Both of the children were interviewed.
The Family Consultant reported that each parent spoke positively about the other. Both parents told the Family Consultant that the children miss their father and want to spend more time with him. The Family Consultant recommended that the children’s time with the father increase and that recommendation has been implemented by the consent orders made on 4 December 2020.
The father’s interim application before the Court relates to the overseas travel which the mother proposes.
He proposes that the mother be at liberty to travel overseas but that the children remain in Australia in his care. He wishes to hold their passports and seeks orders restraining both parties from removing the children from Australia.
The mother seeks orders permitting her to travel overseas with the children for up to five weeks in the Christmas school holidays and for up to three weeks on one other occasion each year. She proposes that she hold the children’s passports.
The most recent iteration of the mother’s position is found in the Case Outline document where the orders she seeks are set out in the following terms:
1.That if the Father is working whilst the Children are at home during the time the Children are scheduled to spend time with him, the Mother have the first right of care.
2.The Mother may travel internationally with the children for up to five (5) weeks over the Australian School Christmas break, and for up to three (3) weeks, on one (1) other occasion per year provided that at least two (2) weeks of travel is (sic) within the Term 1, 2 or 3 New South Wales School Holidays.
The mother also sought orders relating to the issue of passports for the children (in similar terms to the orders sought by the father) and that she hold the passports.
The mother, in her affidavit sworn 25 August 2020, deposed:
84.We have not been able to travel on a family holiday since we came to Australia, other than to visit Country B.
85.Every (3) three years or so we would fly to Country B for a (4) four to (5) week holiday.
86.After Y was born in 2014, we have only been to Country B once as it has been difficult for [the father] to leave his business…
That would appear to be the entirety of the evidence upon which the mother relies in support of the orders she seeks.
This application is being heard at a time when the COVID-19 pandemic has led to daily reports on news media of Australians stranded overseas and unable to return to Australia and reports of Australian citizens and residents being refused permission to travel overseas. At the time of hearing the applications, the Australian Government has imposed a complete ban on overseas travel until 17 March 2021 and there are some 39,000 Australians overseas unable to return to Australia.
There is no evidence that the mother has applied for or received government approval to travel overseas, or that the children have received such approval.
I assume that no application for the children’s travel would be accepted without the consent of the father.
There is no evidence that, if the children left Australia, they would be able to return or when they would be able to return.
In those circumstances, it is not necessary to consider the mother’s application further in relation to any travel proposed during the holidays at the end of 2020.
There is no evidence that, in the short or mid-term, it is likely that international travel, specifically to Country B, is likely to be available for Australian residents. There is also no evidence that, in the short to mid-term, there will be any relaxation of the current requirements for hotel quarantine for persons re-entering Australia such that the proposed five week trip will become seven weeks away from contact with the father and the proposed three week trip will become five weeks away from the father. In either event, the proposal of the mother involves the children missing school.
Further, the mother deposed that, for the first two weeks after their arrival in Country B, the children would be required to isolate. The evidence does not establish the conditions of such isolation.
Although I accept that the mother would like to travel to Country B and that she does not wish to do so without the children, there is no evidence that, remaining in Australia until the substantive proceedings have been heard and determined, would not be in the children’s interests. There is no evidence that it is not in the interests of the children to spend half of the school holidays with each parent, as the parents have agreed as recently as 4 December 2020.
Y, who is six years old, has only been once to Country B. X did not express any concerns about not travelling to the Family Consultant.
Whether or not it will be appropriate for orders to be made to facilitate overseas travel in the holidays at the end of 2021, as I am urged to do on behalf of the mother, will depend on the circumstances then pertaining.
I do not propose to make any orders relating to international travel by the children.
The issues then remaining are which parent holds the children’s passports and the mother’s application in relation to the care of the children during holidays when they live with their father.
Each parent wants to hold the passports. Unsurprisingly, no submissions were addressed to the merits of each position. The orders will provide that the father holds X’s passports and the mother holds Y’s passports.
In relation to the mother’s application relating to the holiday periods when the children are with their father, I am unable to find any evidence of any complaint made by the mother about the nature and quality of the father’s care of the children.
The father deposed that, on occasions, when he has to work while the children are in his care, he takes them to his workplace and organises activities for them. It does not appear to be disputed that X enjoys helping his father at work.
It is also agreed that in the past, at times, each parent has asked the other for help during holidays to facilitate their respective work commitments and they have been able to co-operate in relation to those arrangements.
There is no evidence which suggests that the father’s child care arrangements are inappropriate or that his ability to make appropriate care arrangements should be fettered in the manner proposed by the mother or at all.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 10 December 2020
0
0