Tessaro and Tessaro - [2018] FCCA 3329

FEDERAL CIRCUIT COURT OF AUSTRALIA

TESSARO & TESSARO

[2018] FCCA 3329

Catchwords:
FAMILY LAW – Overseas travel application – applicant’s mother in deleterious state of health – applicant wishing to visit mother in [country omitted] for two months – applicant seeks that parties’ child accompany her on trip to meet and spend time with extended family – [country omitted] a Hague Convention country – parties unable to agree at all upon travel or arrangements for the child – final parenting orders assign sole parental responsibility to the applicant – child spending two days per fortnight with respondent – applicable principles – issues which were agreed – question of risk – quantum of security – orders permitting travel.

Legislation:

Evidence Act 1995 (Cth), s.144

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC

Cases cited:
Atuk & Atuk [2017] FamCA 441
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FamCAFC 104
Kuebler & Kuebler (1978) FLC 90-434
Line & Line (1997) FLC 92-729
R & K [2005] FMCAfam 325
Smallwood & Smallwood [2018] FamCA 58
Thomason & Malhotra [2010] FamCAFC 85
Vaughton & Randle [2018] FamCA 382

Applicant:

MS TESSARO

Respondent:

MR TESSARO

File Number:

MLC 8992 of 2009

Judgment of:

Judge A Kelly

Hearing date:

13 November 2018

Date of Last Submission:

13 November 2018

Delivered at:

Melbourne

Orders pronounced:

13 November 2018

Delivered on:

21 November 2018

REPRESENTATION

Counsel for the Applicant:

Mr Easteal

Solicitors for the Applicant:

Mirabellas Solicitors

Counsel for the Respondent:

Ms Dwyer

Solicitors for the Respondent:

Buller McLeod Pty

ORDERS

UPON APPLICATION MADE TO THE COURT by Mr Easteal appearing on behalf of the Applicant and Ms Dwyer appearing on behalf of the Respondent.

AND UPON THE APPLICANT, MS TESSARO, UNDERTAKING ON OATH TO THE COURT that she will perform and observe her obligations pursuant to this Order to travel with the child [X] born on 2007 (the Child) to [country omitted] with his travel time to not exceed the period commencing on 4 December 2018 until 2 February 2019 and to return the Child to Australia no later than 2 February 2019.

AND UPON MS N, second cousin of the Applicant, UNDERTAKING TO THE COURT that she will lodge with the Registrar of the Court the sum of $10,000 as security for performance of the Applicant’s obligation to return the Child to Australia on or before 2 February 2019.

THE COURT ORDERS THAT:

Subject to compliance with paragraph 5(d) of this Order, paragraph 12 of the Order made on 3 September 2012 is discharged.
Subject to paragraphs 4-5 of this Order, the Child [X] born 2007 be permitted to leave the Commonwealth of Australia AND IT IS DIRECTED THAT the Australian Federal Police do remove the name of the said Child from the Airport Watch List at all points of international arrival and departure in Australia.
To the extent that the following orders are inconsistent with paragraph 3 of the Order made on 3 September 2012 (that is, for the time the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tessaro and Tessaro

Details

AGLC: Tessaro and Tessaro [2018] FCCA 3329
Case: [2018] FCCA 3329
Decision Date: 21 November 2018

CaseChat Overview and Summary

This matter came before the Court on the application of Ms Tessaro (the Applicant) and the Respondent. The dispute concerned the Applicant's proposed international travel with the child, [X], born in 2007. The Applicant sought permission to travel with the child to [country omitted] between 4 December 2018 and 2 February 2019, and to return the child to Australia by the latter date.

The Court was required to determine whether to permit the child to leave Australia with the Applicant, and if so, under what conditions. Key issues included ensuring the child's return to Australia by the specified date, facilitating communication between the child and the Respondent during the travel period, and arranging for make-up time for the Respondent. The Court also considered the discharge of existing orders and the potential for the child's name to be removed from the Airport Watch List.

The Court's reasoning focused on balancing the Applicant's desire to travel with the child internationally against the Respondent's parental rights and the need to secure the child's return. To achieve this, the Court imposed several conditions on the Applicant's departure and travel. These included an undertaking to return the child by 2 February 2019, a requirement to lodge $10,000 as security for performance, and provisions for telephone communication and make-up time with the Respondent. The Court also directed the Australian Federal Police to remove the child's name from the Airport Watch List, subject to compliance with the stipulated conditions.

The Court ordered that the child be permitted to leave Australia with the Applicant for the specified travel period, subject to the Applicant's compliance with a detailed set of conditions. These conditions included lodging security funds, facilitating communication, and arranging make-up time for the Respondent. Liberty to apply was granted to both parties on short notice for various eventualities, including the child's non-return or the need to recover the child. The Applicant was also authorised to apply for an Australian passport for the child without the Respondent's consent.

Orders

Orders of the court

UPON APPLICATION MADE TO THE COURT by Mr Easteal appearing on behalf of the Applicant and Ms Dwyer appearing on behalf of the Respondent.

AND UPON THE APPLICANT, MS TESSARO, UNDERTAKING ON OATH TO THE COURT that she will perform and observe her obligations pursuant to this Order to travel with the child [X] born on 2007 (the Child) to [country omitted] with his travel time to not exceed the period commencing on 4 December 2018 until 2 February 2019 and to return the Child to Australia no later than 2 February 2019.

AND UPON MS N, second cousin of the Applicant, UNDERTAKING TO THE COURT that she will lodge with the Registrar of the Court the sum of $10,000 as security for performance of the Applicant’s obligation to return the Child to Australia on or before 2 February 2019.

THE COURT ORDERS THAT:

Subject to compliance with paragraph 5(d) of this Order, paragraph 12 of the Order made on 3 September 2012 is discharged.

Subject to paragraphs 4-5 of this Order, the Child [X] born 2007 be permitted to leave the Commonwealth of Australia AND IT IS DIRECTED THAT the Australian Federal Police do remove the name of the said Child from the Airport Watch List at all points of international arrival and departure in Australia.

To the extent that the following orders are inconsistent with paragraph 3 of the Order made on 3 September 2012 (that is, for the time the Child may spend with the father), the operation of paragraph 3 of that Order be suspended until 2 February 2019.

The Applicant be permitted to remove the Child from the Commonwealth of Australia only for the purposes of travelling to [country omitted] for the period of 4 December 2018 to 2 February 2019 (the travel period) and only on the following conditions.

The Applicant’s departure from Australia with the Child is subject to the following conditions:

(a) the Applicant will return the Child to Australia no later than 2 February 2019;

(b) the Applicant will only travel with the Child for the purposes of spending time with the Applicant’s relatives in [country omitted];

(c) the Applicant will otherwise comply with this Order regarding facilitating telephone communication between the Respondent and the Child during the travel period and during make-up time between the Respondent and the Child;

(d) by no later than 4:00pm on Friday, 23 November 2018, the Applicant will lodge with the Registrar of the Court, the sum of $10,000 (Security Funds) as security for performance of the obligation to return the Child to Australia on or before 2 February 2019, such sum to be lodged with the Registrar of this Court:

(i) by bank cheque; or

(ii) by clear funds;

(e) upon lodgement of the said Security Funds pursuant to paragraph 5(d) of this Order, the Applicant shall forthwith inform the Respondent of such lodgement in writing;

(f) upon the Child’s return to Australia on or before 2 February 2019, the Security Funds lodged in accordance with paragraph 5(d) of this Order shall be released forthwith; and

(g) pending lodgement of the said Security Funds pursuant to paragraph 5(d) of this Order, the Applicant shall lodge with the Registrar of the Court the original airlines tickets being exhibit T-1 to the Applicant’s affidavit made on 22 October 2018.

The Respondent have liberty to apply on short notice and ex parte to make an urgent application for:

(a) the name of the Child to be restored to the Airport Watch List should the Applicant be in default of her obligations pursuant to paragraphs 5(d) or 5(g) of this Order;

(b) the release of the Security Funds, if the Applicant has not returned the Child to Australia within 24 hours of the Child’s scheduled return on 2 February 2019 so as to meet the reasonable costs and expenses of and incidental to the recovery and return of the Child to Australia.

The Respondent has liberty to apply on short notice for the cancellation or suspension of the Applicant’s Newstart Allowance if the Applicant has not returned the Child to Australia within 24 hours of the Child’s scheduled return on 2 February 2019.

Notwithstanding that the Applicant has sole parental responsibility of the Child, for the avoidance of doubt the Applicant is authorised and permitted to apply for and receive an Australian passport for the Child without first obtaining the written consent of the Respondent.

For the purposes of telephone contact between the Respondent and the Child during the travel period:

(a) the Applicant will facilitate at least one phone call each week by agreement between the parties and failing agreement each Wednesday at 7.00 pm Australian Eastern Daylight Savings Time; and

(b) the Respondent is at liberty to telephone the Child at additional reasonable times on the telephone numbers [omitted] (the landline of the maternal grandmother’s residence) and [omitted] (the mobile phone of the maternal aunt).

10.

Upon the Applicant returning to Australia with the Child, she shall immediately:

(a) advise the Respondent of her return with the Child; and

(b) lodge the Child’s passport with the Registrar of the Court to be held until further Order save that it may be released with the written consent of the parties.

Make-up Time

11.

In lieu of the time the Child would otherwise have spent with the Respondent during the travel period, the Child shall spend 24 nights with the Respondent in addition to his time pursuant to paragraph 3 of the Order made on 3 September 2012 as may be agreed between the parties, and failing agreement from:

(a) the conclusion of school 23 November 2018 – 4.00 pm 25 November 2018 (2 nights);

(b) the conclusion of school 15 February 2019 – 4.00 pm 17 February 2019 (2 nights);

(d) 4.00 pm on 13 April 2019 – 4.00 pm 20 April 2019 (7 nights);

(e) the conclusion of school 3 May 2019 – 4.00 pm 5 May 2019 (2 nights);

(f) the conclusion of school 31 May 2019 – 4.00 pm 2 June 2019 (2 nights); and

(g) 4.00 pm on 6 July 2019 – 4.00 pm 13 July 2019 (7 nights).

12.

Paragraph 4 of the Order made on 3 September 2012 regarding the supervision of the Respondent’s time with the Child applies to the Respondent’s time pursuant to paragraph 11 of this Order.

Additional matters

13.

The Applicant may provide a copy of this Order to the Australian Passports Office and the Australian Federal Police.

14.

Liberty to apply at short notice is reserved in relation to the implementation of this Order.

15.

The parties may inspect only and the parties’ legal representatives and the Independent Children’s Lawyer (if appointed) may inspect and photocopy the document produced by the Department for Health and Human Services in response to the Notice of Risk filed 9 October 2018 in this proceeding.

16.

The parties and their legal representatives are restrained from providing a copy of the document or disclosing its contents to any other person without an order of the Court.

17.

Pursuant to Rule 21.15 of the Federal Circuit Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an Advocate for this application.

AND THE COURT NOTES THAT:

A. Upon lodgement of the said Security Funds pursuant to paragraph 5(d) of this Order, the Registrar of the Court shall return to the Applicant the original airlines tickets being exhibit T-1 to the Applicant’s affidavit made on 22 October 2018.

B. The Applicant and Ms N concede it would be appropriate for the Respondent to immediately apply for the release of the said sum of $10,000 referred to in paragraph 5(d) of this Order, as part of the reasonable costs of and incidental to such arrangements as may be necessary for the purposes of travel to recover the Child and associated legal expenses, should the Applicant not return the Child to Australia by 2 February 2019.

C. Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.

D. The information produced is confidential and cannot be disclosed to any other person or entity without an Order of this Court.

E. Penalties may apply pursuant to ss 112AD and 121 of the Family Law Act 1975 if the information is disseminated other than as ordered in these proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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