Smallwood and Smallwood - [2018] FamCA 58

FAMILY COURT OF AUSTRALIA

SMALLWOOD & SMALLWOOD

[2018] FamCA 58

FAMILY LAW – CHILDREN – Best interests – International travel – Where the mother seeks to travel overseas for a holiday with the children – where a security sum is required – Where the mother and the children have significant ties to Australia through education, employment and family – Where a higher sum will exhaust the financial resources of the mother – Where the children will benefit from an overseas holiday

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

Line & Line (1997) FLC 92-729

APPLICANT:

Ms Smallwood

RESPONDENT:

Mr Smallwood

FILE NUMBER:

ADC

202

2011

DATE DELIVERED:

9 February 2018

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

29 January 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wabnitz

SOLICITOR FOR THE APPLICANT:

Daniel John Lawyers

COUNSEL FOR THE RESPONDENT:

Litigant in Person

SOLICITOR FOR THE RESPONDENT:

Orders

That the mother do forthwith place the sum of THIRTY THOUSAND DOLLARS ($30,000) (“the security sum”) into the trust account of Daniel John Lawyers or such other separate account in the name of Ms Smallwood (“the mother”) subject to Daniel Wabnitz (“the mother’s solicitor”) having the sole authority to operate the said account, with such account to be maintained until 4 October 2021 whereupon the lump sum on deposit together with any interest that may have accrued be returned to the mother.
That the mother do provide written instructions to her lawyer to give effect to the terms of this order and in particular either the deposit of the security sum into her lawyer’s trust account or the separate account as provided for in these orders.
That the mother shall request her solicitor to provide an undertaking that he will do the following:-
(a) Maintain the security sum in his trust account;
(b)If a decision is made that the security sum is to be placed in a separate account THAT he will do all things necessary to facilitate an account in the mother’s name but with him to have the sole ability to operate the account until 4 October 2021;
(c)That he will advise the father that the security sum has been deposited either into his trust account or a separate account and will not release the security sum as invested to the mother as she may request subject to the following conditions:-
(i)If the request is made on or after 4 October 2021;
(ii)The order permitting the mother to remove the children from the Commonwealth of Australia is discharged;
(iii)With the express written consent of the father; or
(iv)By Court Order.
That subject to the undertaking being given by the mother’s solicitor and his confirmation of a security sum having been deposited:-
(a)The mother be at liberty to take the children B born … 2003 (“B”) and C born … 2006 (“C”) (collectively “the children”) out of the Commonwealth of Australia for the purposes of overseas holiday travel.
(b)That the mother do provide the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Smallwood and Smallwood

Details

AGLC: Smallwood and Smallwood [2018] FamCA 58
Case: [2018] FamCA 58
Decision Date: 9 February 2018

CaseChat Overview and Summary

This matter came before Berman J concerning an application by the mother for permission to travel overseas with the parties' two children, B and C. The father sought security for the children's return to Australia.

The primary legal issue before the court was whether to grant the mother liberty to take the children out of the Commonwealth of Australia for overseas holiday travel, and if so, what conditions should be imposed to ensure the children's return. This involved determining the adequacy of security to be provided by the mother.

Berman J ordered that the mother place $30,000 into a trust account operated solely by her solicitor, or a separate account in her name but operated solely by her solicitor. This sum, along with any accrued interest, was to be held until 4 October 2021. The mother's solicitor was required to provide an undertaking to maintain the security sum, facilitate the separate account if necessary, and not release the funds to the mother unless specific conditions were met: after 4 October 2021, if the order permitting travel was discharged, with the father's written consent, or by court order. Subject to the solicitor's undertaking and confirmation of the deposit, the mother was permitted to take the children on overseas holiday travel, provided she supplied the father with travel arrangements at least 21 days prior to departure.

Orders

Orders of the court

That the mother do forthwith place the sum of THIRTY THOUSAND DOLLARS ($30,000) (“the security sum”) into the trust account of Daniel John Lawyers or such other separate account in the name of Ms Smallwood (“the mother”) subject to Daniel Wabnitz (“the mother’s solicitor”) having the sole authority to operate the said account, with such account to be maintained until 4 October 2021 whereupon the lump sum on deposit together with any interest that may have accrued be returned to the mother.

That the mother do provide written instructions to her lawyer to give effect to the terms of this order and in particular either the deposit of the security sum into her lawyer’s trust account or the separate account as provided for in these orders.

That the mother shall request her solicitor to provide an undertaking that he will do the following:-

(a) Maintain the security sum in his trust account;

(b) If a decision is made that the security sum is to be placed in a separate account THAT he will do all things necessary to facilitate an account in the mother’s name but with him to have the sole ability to operate the account until 4 October 2021;

(c) That he will advise the father that the security sum has been deposited either into his trust account or a separate account and will not release the security sum as invested to the mother as she may request subject to the following conditions:-

(i) If the request is made on or after 4 October 2021;

(ii) The order permitting the mother to remove the children from the Commonwealth of Australia is discharged;

(iii) With the express written consent of the father; or

(iv) By Court Order.

That subject to the undertaking being given by the mother’s solicitor and his confirmation of a security sum having been deposited:-

(a) The mother be at liberty to take the children B born … 2003 (“B”) and C born … 2006 (“C”) (collectively “the children”) out of the Commonwealth of Australia for the purposes of overseas holiday travel.

(b) That the mother do provide the father with copies of any and all travel arrangements, including, but not limited to, tickets and an itinerary of travel not less than twenty one (21) days prior to the date of the proposed overseas travel for the children.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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