Talcott and Talcott
[2011] FMCAfam 1477
•19 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TALCOTT & TALCOTT | [2011] FMCAfam 1477 |
| FAMILY LAW – Parenting – application to vary final orders – overseas travel – high conflict. |
| Family Law Act 1975, Part VII |
| Goode & Goode (2006) FLC 93-286 |
| Applicant: | MR TALCOTT |
| Respondent: | MS TALCOTT |
| File Number: | SYC 2163 of 2009 |
| Judgment of: | Altobelli FM |
| Hearing date: | 19 December 2011 |
| Date of Last Submission: | 19 December 2011 |
| Delivered at: | Sydney |
| Delivered on: | 19 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms D. Hausman |
| Solicitors for the Applicant: | Barkus Doolan Kelly |
| Counsel for the Respondent: | Mr R. Washington |
ORDERS
THE COURT ORDERS PENDING FURTHER ORDER THAT:
The Mother on 27 December 2011 by no later than 9.30am deliver the Children [X] born [in] 1998, [Z] born [in] 2003 and [Y] born [in] 2000 to the check-in counter for Singapore Airlines Flight [omitted] at Sydney (Kingsford Smith) International Airport, together with their current passports.
For the purpose of Order 1 above, at the time of delivering the Children to the check-in counter the Mother have in her possession her driving licence or current passport.
By no later than 9.30am on 27 December 2011 the mother hand over the children’s current passports and the Children to the care of staff of Singapore Airlines following the delivery of the Children by her to the check-in counter for Singapore Airlines Flight [omitted] at Sydney (Kingsford-Smith) International Airport.
The Mother be restrained from doing any act or thing contrary to Singapore Airlines’ practice and procedure for unaccompanied minors.
The Mother be restrained from taking any steps or actions to:
(a)waive or prevent the children travelling from travelling as unaccompanied minors;
(b)take possession of the Children’s current passports once those passports have been handed to the staff of Singapore Airlines at the check-in for the flight in accordance with Order 1 above; and
(c)remove the Children from the care of the Singapore Airlines staff responsible for the care of the Children pursuant to Singapore Airlines arrangements for unaccompanied minors.
The Mother be restrained from taking any action or doing anything which impedes the Children being passed into the care of the Father by the Singapore Airline staff upon the Children’s arrival in Singapore and for this purpose, the Mother:
(a)is restrained from accompanying the Children when they disembarking from the flight upon the flight arriving in Singapore and approaching the Children once they have disembarked from the airplane; and
(b)must leave the Children completely in the care of the Singapore Airline staff as and from the time the Children disembark from the airplane.
The Mother is restrained from approaching the Children from when the Children disembark in Singapore from the Singapore Airlines flight [omitted] until the Children have cleared check-in and immigration, and entered the departure area at the international airport in Singapore for the purpose of boarding their flight to return to Australia.
The Mother be restrained from taking any action or doing anything which has the effect of cancelling or causing to be cancelled the Children travelling to Singapore on 27 December 2011 and returning to Australia on 2 January 2012 as unaccompanied minors.
The father is permitted to release a copy of the Orders made on 8 April 2011 and these Orders to Singapore Airlines and to the travel agent responsible for the Children's bookings to travel to Singapore for holidays with their father.
THE COURT FURTHER ORDERS THAT:
The Applicant Father’s costs of today are reserved.
Any Application for Costs must be made by way of written submissions not exceeding 250 words, to be filed and served by 31 January 2012.
Any Response to an Application for Costs must be made by way of written submissions not exceeding 250 words, to be filed and served by 29 February 2012.
IT IS NOTED that publication of this judgment under the pseudonym Talcott & Talcott is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2163 of 2009
| MR TALCOTT |
Applicant
And
| MS TALCOTT |
Respondent
REASONS FOR JUDGMENT
In the matter of Talcott I provide the following ex tempore reasons. I incorporate into these reasons a statement about the context in which this case is happening. It is Christmas duty week, it’s just after 2 pm and I have three other interims to hear this afternoon, hence the reasons I give will, of necessity, be brief. On 7 April 2011 after seven days of hearing, the parents entered into detailed consent orders relating to the children. I note that both the mother and father at that time were represented by very experienced family law specialist solicitors and counsel.
Now, the father’s application is filed 2 December this year and seeks, in effect, to implement the orders of 7 April. The mother’s response was filed on 14 December and it seeks, in effect, to vary those orders. By the time submissions were made before me just after 12 noon, the proposals contained in those respective documents had changed and the issues had narrowed somewhat. The focus of the dispute seems to be on some detailed aspect of the children’s travel to Singapore for the purposes of contact with their father.
The father’s proposal is as follows. He seeks orders 3, 4 and 7 of the interim orders in his application filed 2 December, together with orders 1 to 8 of the minute of additional orders sought by him. The orders sought by the mother were initially contained in her response, but her proposal modified during the course of the submissions so that she, in effect, proposed that on the basis that she was travelling with the children to Singapore, that they would be met by a Ms M who would, in effect, facilitate the changeover of the children from the mother to the father.
The evidence before me consisted of the affidavits of the father and the mother, together with some correspondence that became exhibits before me.
The applicable law: even though the issue is a discrete one before me, it’s still covered by Part VII of the Family Law Act and I am required to make a decision that is in the best interests of the children. It is still the case that the Full Court’s decision in Goode & Goode (2006) FLC 93-286 is relevant and provides a framework for applying Part VII.
There is some common ground in this case. The common ground is that it is a high conflict case. Even if it were not the common ground between the parents, it is an incontestable fact. I cannot ignore the evidence I heard and the impressions I formed before me for a period of seven days. Indeed, I am not asked to ignore those matters. The fact is the mother and father of these children cannot communicate with each other in any constructive way. No trust exists between them. Any communication is more likely than not to be toxic. Both parents struggle to focus on the needs of their children. Both parents struggle to make the distinction between their own personal issues with each other and issues relating to the children.
In these circumstances, the Court would be very reluctant indeed to depart from arrangements which the parents themselves entered into with much expert assistance back in April this year. If the mother and father, through their respective legal representatives, felt that the orders on 7 April represented what was best for the children then, in the absence of evidence suggesting that there has been a change to that, the court would be reluctant to depart from it. I am satisfied that the father’s proposal, in effect, seeks to implement the orders and was necessitated by the mother’s actions.
I am satisfied that the orders pressed by the father today, with the exception of order 6 of the additional orders, go no further than is necessary to implement the consent orders. I am satisfied from the evidence of the father and the mother in their respective affidavits that the application of the father was necessary. In relation to order 6 of the additional orders sought, there is no evidence that would support the making of such an order. In effect, the mother’s proposal seeks to vary the orders in circumstances where there is no change of circumstances warranting a revisiting or reconsideration of the consent orders.
All of the concerns that the mother expresses in her affidavit are amply addressed by her decision to travel with the children on the same flight. The father does not oppose that. Indeed, I doubt if he could. So the fact is that the mother will be with the children for the vast majority of the time that they are travelling from Sydney to Singapore, except for the relatively short periods of time when they will travel as unaccompanied minors pursuant to the orders made.
It is critically important to the emotional welfare of these children that their exposure to their mother and father’s intractable conflict is contained. The flashpoint is not just changeover but, certainly, that would be one focal point. The unaccompanied minor travel scheme is what the mother and father themselves thought was the best mechanism for dealing with this problem. There is no warrant to change this. In circumstances where the father opposes the use of the facilitator such as that proposed by the mother, that is, Ms M, I am not prepared to make that order.
Having heard further submissions from counsel for both the mother and the father, I accept Ms Hausman’s submissions. The interim issue is really the final issue in this case. The only outstanding and unresolved issue is that of costs, and time today prevents me from dealing with it. There is no prejudice to the mother because she can file another application seeking to vary the orders, if she so wants to.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Date: 16 January 2012
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