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 of 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

1. 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.

2. 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.

3. 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.

4. 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Smallwood & Smallwood has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 202  of 2011

Ms Smallwood

Applicant

And

Mr Smallwood

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. Ms Smallwood (“the mother”) and Mr Smallwood (“the father”)  have been engaged in ongoing litigation since 2011 in respect of the parenting arrangements for B born in 2003 (“B”) and C born in 2006 (“C”) (collectively “the children”).

2. Following lengthy hearings in January and April 2016, judgment was delivered on 22 June 2016 which ordered that the parties have shared parental responsibility for the children, and that the mother have sole parental responsibility in respect of their education and health. Other than the father being provided with information as to the children’s progress, and with him being able to provide cards, letters and gifts to the children, no order was made for the children to spend time with him.

3. By Initiating Application filed 7 July 2017, the mother sought orders that would enable her to apply for and receive an Australian Passport for each of the children without the father’s consent and that thereafter that, subject to the provision in respect of the children’s travel arrangements, that she be at liberty to take the children from the Commonwealth of Australia for the purposes of an overseas holiday.

4. The Initiating Application is not intended to relate to any specific trip, but rather, sought that final orders be made enabling the children to travel overseas at the discretion of the mother and without the need to seek the father’s consent on each occasion of proposed travel.

5. By Response filed 6 December 2017, the father opposed the mother’s application and, consistent with general presentation, sought orders that would better enforce the final orders made 22 June 2016, and seeking further orders in relation to the provision of information relating to the children and his communications with the children.

6. The father also filed a Notice of Child Abuse, Family Violence or Risk and alleged that the children had been exposed to family violence, abuse and neglect and had been coerced and controlled by the mother resulting in their “alienation” from him.

7. The orders sought by the father continued an Application in a Case filed on 1 June 2017 again seeking “to enforce Court orders made by His Honour Justice Berman 22 June 2016 wife (sic) has breached almost every order refer to affidavit”.

8. The father also relied on an Application for Contravention filed 5 June 2017 and an affidavit in support alleging that the mother had contravened all orders made on 22 June 2016.

9. On 20 September 2017 paragraphs 3 and 4 of the final orders sought were adjourned for final hearing to 8 December 2017 and an order was made authorising the mother to apply for and retain Australian passports for the children.

10. The children were also placed on an Airport Watch List pending further order.

11. On 8 December 2017 the father’s Application for Contravention was dismissed together with all other interim proceedings.

12. Evidence was heard from the parties in respect of the mother’s application for final orders and judgment was reserved following further submissions on 29 January 2018.

DOCUMENTS RELIED UPON

1. The mother relies upon the following documents:-

   (1)Initiating Application filed 7 July 2017.

   (2)Mother’s Affidavit filed 7 July 2017.

   (3)Mother’s Affidavit filed 15 September 2017.

   (4)Mother’s Affidavit filed 29 November 2017.

   (5)Mother’s Affidavit filed 25 January 2018.

2. The father relies upon the following documents:-

   (1)Response filed 6 December 2017.

   (2)Father’s Affidavit filed 15 August 2017.

   (3)Father’s Affidavit filed 6 December 2017.

MOTHER’S EVIDENCE

1. The mother is currently employed as a project manager for a family owned and operated business.  She has held that position of employment for about 12 months.

2. The children currently attend a school in the southern suburbs.  B is now in Year 9 and C is in Year 6.  The mother intends that the children will remain at their current school and complete their secondary school education.

3. She asserts that the children have a wide friendship group and are engaged in extra-curricular activities comprising dancing and gymnastics.

4. Adelaide has remained the constant place of residence for the family both prior to and after separation.

5. The mother has not taken the children on an overseas holiday and, whilst she does not have any definite plans to do so, wishes to have the ability to travel with the children without recourse to the father.

6. The mother states that any application or request made of the father will be met with a refusal.

7. She rejects any contention that she is a flight risk and in her affidavit filed 29 November 2017 proffers a deposit by way of security of $10,000 three days prior to any proposed period of travel.

8. The mother’s position altered after further consideration and by her most recent affidavit filed 26 January 2018 she considers that her previous proposal to put forward a security bond of $10,000 was inadequate and she is now willing to increase her offer of a security deposit to a maximum of $30,000 with such sum to be placed into her solicitors trust account seven days prior to the proposed period of travel.

9. The mother’s evidence is that she does not own or have an interest in any real estate either personally or by involvement as an appointor of a trust or by directorship or as a controlling shareholder of any company.

10. The submission is that the sum of $30,000 would exhaust the financial resources of the mother.  A higher amount could not be obtained.

11. In summary, the mother seeks to persuade the Court that she does not have any intention to permanently remove the children from Australia and that she does not present a risk of doing so.

THE FATHER’S EVIDENCE

1. Notwithstanding the final orders, the father argues that there has been substantial non-compliance by the wife and even though he has made numerous and repeated requests for information pertaining to the children’s wellbeing, the mother’s refusal has been manifest.

2. Whilst not directly connected to the mother’s application, the father argues that if the mother has breached the provisions of the final orders that enable the father to have some scant information as to the children’s development and lives, the Court can have no confidence that the mother will comply with any condition imposed upon her to either provide information as to the children’s travel plans or to ensure their return to the jurisdiction.

THE MOTHER’S PROPOSAL

1. The mother proposes the following conditions attached to any order that would give her leave to take the children overseas:-

   (1)That she provide the father with copies of any travel arrangements, including but not limited to, tickets and an itinerary no less than 21 days prior to the proposed date of her travel with the children.

   (2)That she provide a security deposit in the sum of $30,000 seven days prior to the children’s departure, with such sum to be placed in the trust account of the mother’s current solicitor.

2. The father argues that he does not receive any adequate information now and also asserts that numerous requests made by him directed to the mother’s solicitor have been met with silence.

3. The mother’s solicitor proffers his personal undertaking that he will maintain the mother’s security deposit (if so ordered) in his trust account and that upon any breach of a condition of the order made, or if he should receive instructions terminating his instructions and seeking the withdrawal of funds, he will forthwith refuse the mother’s request and advise the father accordingly.

4. It is difficult to understand why a solicitor would be prepared to give such an undertaking, but notwithstanding the Court’s repeated enquiry of the mother’s solicitor as to whether he would wish the opportunity to reflect on his offer, I am satisfied that he was committed to giving the undertaking.

5. For his part, the father continues to oppose the mother’s application and is not prepared to countenance the children travelling overseas irrespective of any condition that may attach.

PRINCIPLES RELEVANT TO PARENTING ORDERS

1. The children currently reside with the mother and spend no time with the father.  The present application does not seek to re-litigate the final orders made on 22 June 2016 but rather, to make further final orders limited to overseas travel.

2. The father did not argue that the mother’s application should be dismissed on the basis that the mother’s application did not amount to a material change in circumstances and therefore the further litigation could not be considered as being in their best interests.

3. Whilst the matter for determination is of narrow compass, s 60CA of the Family Law Act 1975 (Cth) (“the Act”) requires the best interests of the children to be the paramount consideration. The interests test is to be considered by the application of the objects of s 60B(1) by reference to the primary and additional considerations as set out in s 60CC(2) and (3).

4. Whilst the father would allege that the mother’s conduct and perceived breach of final orders places the children at risk, I do not consider that the evidence substantiates that proposition.

5. The father’s Contravention Application was dismissed and whilst he alleges that the mother is recalcitrant in her preparedness to provide information as to the children’s wellbeing, she does not consider that she is in breach.

6. Accordingly, I am entitled to take the provisions of the final orders as a representation of the current circumstances.

7. I propose to adopt the following approach:-

   (1)Give consideration to the proposals put forward by each of the parties as they were identified and presented to the Court.

   (2)Have regards to the objects expressed in s 60B(1) and underlying principles in s 60B(2).

   (3)Have regard to the provisions of s 60CC in order to determine in each case what is in the child’s best interests.

   (4)Have regard to the primary considerations under s 60CC namely, the benefit of the child having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm.

   (5)Have regard to the additional considerations under s 60CC(3).

   (6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and (3) are to be considered and if more weight is to be given to one or more of the matters raised then this must be the subject of delineation and comment.

8. The issues in dispute between the parties do not involve a consideration of parental responsibility, nor of time spent.

PARENTING CONSIDERATIONS

1. The final orders do not provide that the children spend any time with the father, but are comprehensive in respect of the level and the extent of information that the father is entitled to receive pertaining to their health, education and general wellbeing.

2. The mother considers that the children will benefit from overseas travel.  The father does not necessarily agree, but in any event argues that their wellbeing may be far better served by them making contact with him and resuming a relationship.

3. The unchallenged final orders supported by detailed reasons for judgment are readily applicable to the current circumstances.

4. There is no indication of the children’s wishes, but there is also no suggestion that the children’s presentation has changed towards their father.

5. The family consultant considered that it would not be in the interests of the children for there to be any direct contact with the father and was pessimistic that their attitude towards him would likely change in the foreseeable future.

6. It can be reasonably assumed that the children would wish to travel overseas and are unlikely to seek a resumption of their time with the father irrespective of the outcome of the mother’s application.

7. The essence of the proceedings is to assess the risk that the mother presents in terms of the children returning to the jurisdiction.

8. Even though the children do not spend time with their father, it is important to maintain the last vestige of a relationship with him by the requirement that significant and major issues that affect the children should be the subject of disclosure and discussion between the parties and that the children understand the father is to receive information as to their development and wellbeing.  Should the children not return to Australia, there will be no hope of the father ever maintaining a relationship.

9. The mother argues that whilst it would be possible to return to Court to consider each application for travel, the circumstances are such that the Court can be satisfied that a general order can be made thereby reducing the need for further and repeated litigation.

10. I consider that there is merit in that submission.

11. The mother contends the following:-

    (1)That the children a have strong and secure attachment to Adelaide.

    (2)That the children attend their current school and will do so until the completion of their secondary school education.

    (3)That the mother’s family are based in South Australia.

    (4)That the mother’s employment is in her family’s business enterprise and this provides her with considerable financial security.

    (5)That the children have a strong involvement in curricular and extra-curricular activities.

    (6)That the mother would not take the children to any non-Hague Convention country.

    (7)Given that the final orders do not provide for the children to spend physical time with the father, an overseas holiday of limited duration is unlikely to prejudice the father in terms of the final orders.

MATTERS TO BE CONSIDERED ON THE PROVISION OF SECURITY

1. Whilst paying appropriate attention to the father’s misgivings in respect of the mother’s preparedness to inform him of matters affecting the children, the circumstances are such that whilst there is always some risk that if permitted to travel overseas the mother may not return the children, I consider that risk to be at the low end of the spectrum.

2. It is of assistance that the mother proposes security in the sum of $30,000.

3. In Line & Line (1997) FLC 92-729 the Full Court said at paragraph 4.47:-

   4.47The fixing of an appropriate level of security in circumstances such as these is always a delicate matter, and one very much for the discretion of the trial Judge.  However, in exercising that discretion we consider that a trial Judge should have regard to a number of relevant matters.  Some of the matters we will now identify have been already highlighted by Asche SJ in Kuebler & Kuebler (1978) FLC 90-434. We think it timely that we again draw attention to those matters and others we believe to be appropriate.

   4.48The first of those matters to which the trial Judge should have regard is the purpose of such security, in respect of which we adopt, with respect, the two-fold purpose referred to in the submissions of counsel for the husband and set out in paragraph 4.42 above namely:-

   (a)to provide a sum which will realistically entice the person removing the children to return; and

   (b)to provide a sum to adequately provision the party left in Australia to take action and proceedings in Australia and overseas in an endeavour to obtain the return of the children.

4. In all the circumstances, I consider that the provision of a security sum together with the substantial family, employment and educational connections that the mother and the children have in Australia is sufficient to persuade the Court to exercise its discretion in favour of the mother’s proposal.

5. Whilst the mother indicates that she would have no interest in taking the children to a country that is not a signatory to the Convention on the Civil Aspects of Child Abduction (“the Convention”), once the children have left the jurisdiction there is no easy pathway to enforcing an order that would permit travel only to Convention countries.

1. The mother’s initial application was that the security sum would be deposited into her solicitor’s trust account on each occasion that she intends to travel, with it being withdrawn at the conclusion of travel and upon the children being returned to Australia.

2. I raised with the parties whether the mother would be prepared to provide the security sum by way of ongoing deposit pending the youngest child attaining the age of 15 years, whereupon the requirement for security will cease.  There was no opposition by either party.

CONCLUSION

1. I am satisfied that whilst a specific trip has not been planned or detailed, the children will benefit from an overseas holiday.  The risk of the mother absconding with the children is minimal, particularly so when taken together with a permanent security sum being provided and an undertaking from the mother’s solicitor that he will advise the father if his instructions are terminated, if there is any request for a return of the security sum, or if he has any knowledge or information which would suggest that the mother has an intention to travel overseas with the children for any purpose other than a holiday of limited duration.

2. I make orders as at the commencement of these reasons.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 9 February 2018.

Associate: 

Date:  9 February 2018