SUTOR & SEEVER

[2014] FamCA 1112

FAMILY COURT OF AUSTRALIA

SUTOR & SEEVER [2014] FamCA 1112

FAMILY ALW – CHILDREN – INTERIM ORDERS – Overseas travel – Best Interests –Where the father seeks to take the children to the United States for five weeks – Where the children are aged four and two years old – Where there is no evidence to suggest the children have been apart from the mother for more than one week – Where there is no evidence that the paternal family are familiar figures to the children –Where the Court is not satisfied the father’s proposal is in the children’s best interests – Application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Mr Sutor

RESPONDENT: Ms Seever

FILE NUMBER: SYC 2712 of 2014

DATE DELIVERED: 18 November 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 18 November 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Moy

SOLICITOR FOR THE APPLICANT: Jo-Anna F.S. Moy Solicitor

COUNSEL FOR THE RESPONDENT: Ms McMahon

SOLICITOR FOR THE RESPONDENT: Turner Freeman Lawyers

Orders

IT IS ORDERED

1. That the application filed by the father on 16 July 2014 in relation to order 7 of the interim orders sought be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Sutor & Seever 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 SYDNEY

FILE NUMBER:  SYC 2712 of 2014

Mr Sutor

Applicant

And

Ms Seever

Respondent

REASONS FOR JUDGMENT

1. The applicant in the proceedings before the Court is the father, Mr Sutor (“the father”), who was born in the United States of America.  The respondent is the mother, Ms Seever (“the mother”).  The application before the Court is the father’s application to take the children to the United States of America between 28 November 2014 and 1 January 2015, a period of five weeks.  The subject children are A Sutor-Seever, born in 2010 and now four years old (“A”), and B Sutor-Seever (“B”), born 1 February 2012, and now two years and nine months (“the children”). 

2. The children have four older half-siblings, the children of their mother.  They are C, aged 20, who lives independently; D, aged 14; E, aged 13; and F, nearly 12.  The three younger boys live with their mother and the subject children. 

3. The parents lived together until 29 May 2013, when the father travelled to the United States of America for six weeks.  On his return, he lived apart from the mother. 

4. There is a dispute about the circumstances of the care of the children after the separation of the parties.  These are interim proceedings without cross-examination, and it is not possible to determine the facts which are in dispute. Additionally, the Court receives no assistance in these proceedings from a family consultant or other suitably qualified expert.  The matter falls to be determined on the basis, only, of the untested affidavit evidence. 

5. It is the mother’s evidence that from the father’s return to Australia in July 2013, until he rented his own premises in late September 2013, he spent little time with the children. 

6. The father disputes that version of the events.  He gives evidence that after his return to Australia he cared for the children in their home on alternate weeks for a period of about six weeks.  Thereafter, he says, until late September 2013, when he obtained his own premises, he visited the children at the mother’s home three or four nights each week. 

7. It is not disputed that when the father secured his own premises he cared for the children in those premises on a week-about basis. 

8. The parents’ perceptions of the effect of those arrangements on the children are quite different.  It is the father’s evidence that the boys have settled well in the arrangement, and transfer easily from parent to parent.  The mother is unhappy with the week-about arrangement and says that the child A in particular is reluctant to go to his father’s home. 

9. The father travelled to the United States of America between 11 July and 22 August 2014.  There is no suggestion that the children were adversely affected by his absence. 

10. The father now wishes to take the children to the United States for a period of five weeks to visit family.  The mother opposes the application, and says that five weeks is too long for the children at age four and two, nearly three, to be separated from her.  There is no evidence that suggests that the children have ever been apart from their mother for more than a week. 

11. The father relies on a series of conversations and emails, which, he says, evidences the mother’s having consented to the trip and then withdrawing her consent.  There is no doubt that discussions took place between the parents very early in 2014 about the father’s proposal to take the children to the United States of America for Christmas.  The father booked the flights in March of 2014. 

12. The father, in his affidavit sworn on 25 October 2014, says in relation to these events:

    127. The respondent called me the first week of January 2014 and said “Are you taking the boys to the States for Christmas this coming year (2014), as [Mr S]wants to plan Christmas for the other children”. He has done this every year since I have known [the mother]. I said “of course I want to but I don’t know how much it will cost, its too far away for the airlines, there are no fares posted. I will get back with you in March or so.”

    128. On 5 March I text her and ask if 6 weeks was ok with her for Christmas. I received no response.

    129. On 6 March I emailed her she responded with that she thought 6 weeks was a little long, she would talk to her lawyer.

    130. On 7 March, I emailed her again I noted, I might be able to go 5 weeks, if she thought 6 too long.

    131. On 9 March she emails back and asks if I have checked with other airlines with different dates that might lower the cost, showing me that she is open to it.

    132. On 9 March I respond back that I have checked other airlines. I also point out that she used to visit me for 2 or 4 weeks in the States (that happened for 2.5 years every other quarter). I also note that she came to US for 4 or 5 weeks initially to see me and visit cousins in [City X] and her children were then the same age.

    133. On 9 March she responds and says “fair enough” to the 4/5 weeks to [City X] comments.”

    134. I called the respondent on 11 March and we spook (sic) for 20 to 30 minutes. The entire conversation is about Christmas, she asked “why do you need 6 weeks?”. I explained “Flying in Dec is too expensive if we go in November it is much cheaper.” I then said “if we go in November it would be great to go a few days earlier for Thanksgiving and I would like to be there for my mother’s birthday on the … and my best mates birthday on …, hence the 6 weeks but I am ok with missing my mates birthday and missing thanksgiving I can get it down to about 4 weeks”. She said “ok”. I said “I will book tonight so I don’t miss the sale”. She said “fine”. I said “Can I have it in writing”. She said “Fine I will speak to …”.

    135. Approx. 2/3 weeks later I asked her about this and she said that she had been busy but that she would follow up with it and let me know.

    136. On April 29 I emailed the respondent.   Exhibited to me at the time of swearing this affidavit and marked “JHS3” is a true copy of the emails passing between the respondent and I in relation to Christmas.

13. It is not clear from the emails which were tendered that the mother was made aware of the precise travel arrangements until the father filed his application in July 2014.  The mother’s apparent acquiescence, while relevant, is not a determining factor here.  As in all decisions relating to parenting, the Court is required to determine what arrangements are in the best interests of the children. 

14. The children are too young to express any views.

15. There is no suggestion that the children have other than a close and loving relationship with both of their parents.  In the mother’s household, E shares a room with A, and F shares a room with B.  The mother deposes to a close relationship between all five of the children in her household. 

16. At paragraph 104 of the mother’s affidavit sworn on 17 September 2014, the mother gives evidence of the distress experienced by the younger children when their older half-brothers spent a holiday away from them in Fiji.

17. It is submitted on behalf of the father that the benefit to the children of the trip is that they would have an opportunity to spend time with their paternal grandmother, their uncle and aunt, and their cousins.  The child A has not seen the paternal grandmother since she travelled to Australia when he was three months old.  The child B has not met his United States family.  Both of the children have had limited Skype contact with the paternal grandmother.  There is no evidence that the paternal family are familiar and comforting figures for the children. 

18. The father’s substantive application is to relocate with the children to the United States of America.  He proposes that they would spend time with their mother and half-brothers for ten weeks in the United States summer holidays, and for two weeks at Christmas.  That application is not being considered here, but it is relevant in that his proposal gives rise to concerns about his understanding of the developmental and emotional needs of children aged nearly three years and four years of age.  Consequently, concerns arise about his capacity to provide for their emotional needs, and his attitude to the responsibilities of parenting these very young children where their needs do not coincide with his. 

19. I am not satisfied that the benefit to the children of spending time with, and getting to know, their American family outweighs the detriments of being separated from their mother and their half-brothers for such a lengthy period.  I cannot confidently predict the effect on either child of a lengthy separation from his mother, or whether such a separation would constitute a risk to their attachment to her.

20. Consequently, I am not satisfied that the father’s proposal was in the best interests of the children, and the application will be dismissed. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 18 November 2014.

Associate: 

Date:  18/11/2014