Somers and Somers

[2018] FamCA 326

FAMILY COURT OF AUSTRALIA

SOMERS & SOMERS [2018] FamCA 326

FAMILY LAW – CHILDREN – A suspension of watch list order to allow child to holiday overseas – assessment of risk of non-return – Watch list order suspended – Costs ordered.

APPLICANT: Mr Somers

RESPONDENT: Ms Somers

INDEPENDENT CHILDREN’S LAWYER: Ms M Lonergan

FILE NUMBER: MLC 1965 of 2016

DATE DELIVERED: 23 April 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 23 April 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Paterson

SOLICITOR FOR THE APPLICANT: Carew Counsel

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:	In person
COUNSEL FOR THE INDPEPENDENT CHILDREN’S LAWYER:	Ms A Boymal

SOLICITOR FOR THE INDPEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

IT IS ORDERED THAT

1.Leave is granted to the mother to file her response to an Application in a Case filed by the father on 12 April 2018 and affidavit sworn on 20 April 2018 and those documents have been served as sealed.

2.The evidence of the father given this day be transcribed and when transcribed a copy of the transcript be placed on the Court file.

3.Paragraph 1 of the Orders made on 31 May 2017 with respect to the child B (female) (“the child” “the child”) born … 2009 be suspended for the period 30 April 2018 until 11 May 2018 inclusive and IT IS REQUESTED that the Australian Federal Police give effect to this Order by removing the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia from 30 April 2018 to 11 May 2018 inclusive and otherwise maintain the said child’s name on the Airport Watch List until the Court orders it’s removal.

4.The address provided by the father to the Court be placed in an envelope which is sealed and marked “Not to be opened save by order of a judge of this Court”, that being the address at which the father says that he and the child B reside.

5.The father’s Application in a Case filed 12 April 2018 be and is hereby otherwise dismissed.

6.There be leave to the father to make an oral application for costs of and incidental to these proceedings.

7.The wife make a contribution to the costs of the husband of these proceedings fixed in the sum of $1,000 and to be paid by not later than 12.00 noon on 23 May 2018 in clear funds to the solicitor for the husband.

IT IS DIRECTED

8.That the minute of orders as signed by the father and the independent children’s lawyer be marked Exhibit “A” and remain on the Court file.

9.The correspondence from the solicitor for the husband to the solicitor for the wife dated 9 April 2018 and the reply from the solicitor for the wife (Forster & Associates Lawyer) dated 12 April 2018 be marked Exhibit “B” and remain on the Court file.

10.My reasons for decision this day be transcribed and when settled be placed on the Court file and a copy provided to the parties.

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 Somers & Somers 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 MELBOURNE

FILE NUMBER: MLC 1965 of 2016

Mr Somers

Applicant

And

Ms Somers

Respondent

And

INDEPENDENT  CHILDREN’S LAWYER

REASONS FOR JUDGMENT

EX TEMPORE

1. This matter comes before me on the application of the father, filed on 12 April 2018, in which he seeks that a watch list order affecting the child the child be suspended to enable him to travel with the child and his partner with whom he resides and her son to Asia from 30 April 2018 to 9 May 2018. 

2. The application is supported by an affidavit affirmed on 12 April 2018.  The application was required to be served by 13 April 2018, and irrespective of that, it was set down for hearing on 23 April 2018, which is today.  And the mother, Ms Somers, has responded to it with a response and an affidavit sworn today and filed with my leave.  Those documents are served as sealed.

3. Ms Paterson of counsel appears on behalf of the father, and the father’s solicitor is also present in court.  Ms Boymal appears on behalf of the Independent Children’s Lawyer, who is Ms Lonergan of Victoria Legal Aid.  The mother appears in person.  Her former solicitor, Ms Jean Forster, having written to the court more than a week ago indicating that she had no instructions to appears this day and that her instructions had been terminated for, as best I recollect, financial considerations.

4. The matter has proceeded on the basis of submissions.  The only cross-examination sought was by the mother of Mr Somers, and that occurred today.  That somewhat broadens the evidence in support of the application, and I am satisfied that it actually strengthens rather than weakens the father’s case. 

5. The father deposes that for the last five months, or perhaps six months, he has resided with Ms RR and her son SS.  SS and the child go to different schools, and I note that the affidavit says that the child goes to TT Primary School. 

6. The trip will involve the child missing some seven days of school – that is, approximately a week and a half’s school – and will be to Asia only and for recreational purposes only.  The father has given evidence that he has obtained travel insurance which contains a medical insurance component in the event of mishap or illness whilst the child is out of Australia.

7. The mother’s application by way of response is to maintain the watch list order and for such other or further orders as I consider appropriate.  I have explained to the mother that the latter is not an order in itself.  Specifically, she seeks that the airport watch list be maintained.

8. In submissions and discussion with me, the mother says that she does not object to the child travelling overseas, but she is not prepared to consent to it because she says that she does not know enough about the child.  That is somewhat at odds with her cross-examination of the husband.  Nonetheless, I permitted the cross-examination to proceed in case the mother wanted to change her case.

9. The mother’s opposition to the trip is that she is concerned that the child may not be mentally, emotionally or physically fit to travel, and that the mother is concerned that the father may not return to Australia with the child but may presumably go on to another country. 

10. This family was the subject of an extensive hearing by me last year and extensive reasons for decision.  That decision involved the father having sole parental responsibility for the child.  So for the avoidance of doubt, the father is able to obtain passports for the child and to travel out of Australia with the child.  The impediment is that there was a watch list order put on the child at that point. My recollection is that it pertained to some risk that the mother may remove the child from Australia as well as the father could possibly remove the child from Australia.  It is for that reason that the father returns to court now, notwithstanding that he is the parent with sole parental responsibility.

11. The father’s evidence is that the child continues to see the psychologist Ms UU, which was a condition of the final order, and that she does so monthly.  His evidence is that the child is physically fit.  She was most recently taken to the doctor about a month ago when she had a sore throat and a cough, but the doctor diagnosed no reason to keep her away from school and she went to school the next day.

12. Emotionally, the father says that the child has settled in and that she has ceased to run away.  This coincided with the child being told that if she continued to run away from his care, he would consider changing her school.  The basis of that is, on his evidence, that the child had been passed a note from the mother which unsettled her and which referred to the fact that the mother was worrying about the child as the child slept.  The mother categorically denies from the bar table that she sent a note.  The mother also denies that she sent gifts via someone at the school, but it appears from the father’s evidence that the indication to the child that he might change school arose because of his belief that the mother was communicating with the child through members of the school community.

13. The mother is concerned that the father has insufficient ties to Australia to be satisfied that he will necessarily return.  In her evidence, she refers to the moneys which the father would have received by way of alteration of property interests, nearly $500,000.  The husband’s evidence under cross-examination was that he has invested those funds and that he has also contracted to purchase a property which contract is subject to finance.  Settlement is due in June 2018.  He will put all of his remaining funds, which are some $400,000, towards the acquisition of property, and has applied to borrow another $500,000 to complete the purchase.  The property will be registered in his name alone.

14. The father continues to be employed in what was, on my recollection, very long-term employment.  He has some 26 weeks of long service leave still owing to him.  He does not know whether that could be paid out in the event of his resignation, or whether that would have to be taken by way of leave.

15. The evidence of the father is that his partner is European by heritage.  She is an Australian citizen.  SS’s father has been in Australia for about 20 years and is in permanent employment.  He sees SS approximately once a week.  SS has travelled outside of Australia with his mother previously.  SS’s father is aware of the travel plans (says the father). 

16. I am satisfied that on the facts of this case, the father has significant ties with Australia.  His mother is here; his brother is here.  I remember his mother being a witness in the proceedings.  He has no brothers anywhere else in the world or sisters anywhere else in the world, as I understand it.  He has a cousin in Europe who he has not had contact with for some time.  This does not impress me as a case where there is a risk that the father will use the departure from Australia for the purposes of a holiday as a stepping stone to retain the child outside Australia in breach of any rights which the mother may have or to the detriment of the child. 

17. The evidence confirms for me that the father is much more likely than not to return and, as such, it is appropriate that I consider the application in the context of the best interests of the child. 

18. As with any parenting application, the orders I make must coincide with the best interests of the child which are the paramount consideration.  They’re not the only consideration.  There are considerations of both parents’ rights to travel and to move and to have holidays outside Australia although at this stage I would not say that that ranks as particularly high.  The father has had one trip out of Australia in the last 30 or so years.  Nonetheless, he has an opportunity to travel and he wants to take it with his partner and her child and to take the child with them. 

19. I do not have any direct evidence of the views of the child in relation to the travel.  She is not a well-travelled child.  I expect that she will find some parts of it challenging and some parts of it interesting but I am satisfied that it will be an educative experience for her, no matter what.  She will observe a different culture. 

20. I take into account the parenting capacity of each of the parents. 

21. The father was found by me last year to be way and above the parent with whom the child should reside due to his superior capacity to meet her emotional needs.  The wife’s capacity to meet the child’s emotional needs was the subject of adverse findings at trial and nothing much has happened since which persuades me otherwise.  I am satisfied that of the two parents the father is the best equipped to care for the child.  It follows that I think the child will be adequately cared for by him for this brief time that she is out of Australia on what is essentially a recreational trip to a popular tourist destination. 

22. In all of the circumstances I am satisfied that the orders sought by the father should be made.  I have indicated that it may be made in a slightly different way depending on the requirements of the Australian Federal Police; it may be that I discharge the existing watch list order as at 30 April 2008 and impose a fresh watch list order on 11 May 2018 rather than suspend it.  No party takes issue with the difference in that order.  It will merely reflect the convenience of the Australian Federal Police who, after all, are tasked with implementing whatever orders I make. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 23 April 2018.

Associate: 

Date:  14 May 2018