Southwell and Sargent

[2016] FamCA 364

FAMILY COURT OF AUSTRALIA

SOUTHWELL & SARGENT [2016] FamCA 364

FAMILY LAW – CHILDREN – interim orders – where the mother seeks an order that she be permitted to travel with the child to Greece and that the father pay the costs of the child’s return airfare – where consideration is given to Greece being a Hague Convention country – where the mother is permitted to travel with the child – where the father is ordered to pay the mother a sum by way of partial property settlement.

APPLICANT: Ms Southwell

RESPONDENT: Mr Sargent

FILE NUMBER: DNC 79 of 2015

DATE DELIVERED: 13 May 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 13 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Barry

SOLICITOR FOR THE APPLICANT: Darwin Family Law

COUNSEL FOR THE RESPONDENT: Ms Farmer

SOLICITOR FOR THE RESPONDENT: Withnalls Lawyers

Orders

1. By 20 May 2016 the father provide the sum of FIVE THOUSAND DOLLARS [$5,000.00] to the mother by way of partial property settlement.

2. Any Airport Watch List or orders preventing the mother from removing the child B born on … 2011 (“the child”) from Australia are discharged.

3. The mother Ms Southwell is permitted to take the child out of Australia and travel to Greece for the period 18 June 2016 to 30 July 2016 PROVIDED THAT the mother returns to Australia in Darwin by 1 August 2016.

4. The interim financial matters are referred to the Registrar for a date to be advised in early August 2016 for mention only before a judge.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: DNC 79 of 2015

Ms Southwell

Applicant

And

Mr Sargent

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is a hearing of an interim application in relation to the welfare of the child of the parties B born in 2011 (“the child”) and is therefore aged five.  The application currently before me is on behalf of the mother.  She seeks that the Court give her leave to take the child to Greece from 18 June to 30 July this year and that the husband pay the return airfare costs for the child, with the mother to meet her own costs. 

2. Paragraph 9 of the application requires the child’s name to be removed from the Airport Watch List and the husband do all acts and things to remove the child’s name from the Airport Watch List.

3. I am told by counsel that the placing of the child’s name on the Airport Watch List has expired but, as a matter of caution, the mother is seeking an order of this Court to ensure that it no longer applies. 

4. The dispute between the parties is whether the child should be allowed to go on a holiday to Greece and, at the same time, who should pay for the costs of the child.  I have heard the detailed submissions from both counsel for the parties.  What is significant is that I have been referred to the earlier material filed in the Court, together with the affidavit to which is annexed the report of Mr C, which deals with the interviews of the parties and the comments that they made.

5. The significant issue is the question of how it impacts upon the welfare of the child and the need to ensure that the child is returned to Australia so that the overall proceedings in relation to the child’s welfare can be determined appropriately. 

6. I take into account that Greece is a Hague Convention country and, therefore, enforcing orders would be available.  That is, however, not a significant factor in this matter because these are interim proceedings.  The welfare of the child is the primary consideration.  I take into account the affidavit of the mother in which she refers to the psychological and emotional benefits she would allegedly receive if she were given permission to go on a holiday with the child to Greece and enjoy the benefit of her extended family in Greece, having limited extended family here in Australia in Darwin.

7. I take into account the father’s opposition on the basis of his concerns, not only about the financial arrangements sought but about the need for some form of guarantee and his concern about the return of the child. 

8. The proceedings concern not only the matters relating to the child but also significant matters in relation to financial property settlement proceedings, which are currently outstanding.  What I need to be determining, however, is whether it is currently in the best interests of the child for the orders to be made, giving her leave to exit Australia with the mother and the absence of a period of six weeks.

9. I take into account that two of those weeks are what would be normal school term time for the child.  However, I take into account the age of the child.  The possible detriment of the child not attending school on those two weeks would be easily offset by the benefit to the child of the interests she would gain in travel and the interaction with her extended family.  The period of time she is absent from school should not prevent the orders that the mother is seeking. 

10. In relation to the question of the mother returning to Australia, the orders would specifically provide for her to return to Australia and be back in Australia by 1 August 2016.  My reasons make it clear that if she does not return the child to Australia then the father’s proceedings in relation to the return of the child, pursuant to the Hague Convention, could be brought on and my reasons used in that regard.  There is no basis upon which the mother is asserting that she will not return.  There is also the outstanding property settlement proceedings, which will be an encouragement for her to return. 

11. Quite clearly, if she did not return with the child then there would be significant consequences to her financially, bearing in mind that that would put at risk any claim that she makes under the property settlement proceedings. 

12. I am therefore of the opinion that it is in the best interests of the child for her to have the benefit of the increased psychological and emotional welfare of the mother by being able to take the child to Greece and by the increased benefit to the child of having time with her extended family. 

13. In relation to the question of the costs, however, the mother informs the Court that her costs are being paid by her father and that she cannot afford or is asserting that she cannot afford the return airfare costs for the child.

14. There is a dispute as to whether I could make that order under any child maintenance or child support type orders.  My understanding is that the current orders and arrangements in place are that the father pays spouse support and child support, according to a significant assessment.  This, however, is an application for the father to pay for the airfares for a child for a holiday.  The information which is currently before the Court does not establish this as a need of the mother or a need of the child.  It would no doubt be a benefit to the mother and a benefit to the child but I am not satisfied that the material currently before the Court enables the Court to make a determination that it is an order which should be paid.

15. However, I accept that the father has indicated (and, I think, appropriately) that if an order is made to permit the child to leave the country he will provide the mother with $5000 by way of partial property settlement.  I therefore make that order.

16. As far as timing is concerned if the mother is planning to leave on 18 June then it would be appropriate for the order to provide for the father to pay the mother the sum of $5000 by way of partial property settlement by 20 May 2016.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 13 May 2016.

Associate: 

Date:  18 May 2016