Thommen and Thommen

[2016] FamCA 537

FAMILY COURT OF AUSTRALIA

THOMMEN & THOMMEN [2016] FamCA 537

FAMILY LAW – CHILDREN – VARIATION – Application to vary consent orders made by the senior registrar – Where the father opposes that application and seeks that the application be dismissed – Where the child is 15 years of age – Where the current orders permit the father to take the child overseas for the purpose of enabling him to participate in a development program – Where the mother seeks to have another family member accompany the child to attend the overseas program – Where it was submitted on behalf of the father that having determined the application this Court is now functus officio – Where the appropriate course was to make an application for a review of the decision of the senior registrar – Application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Ms Thommen

RESPONDENT: Mr Thommen

FILE NUMBER: SYC 7060 of 2015

DATE DELIVERED: 27 June 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 27 June 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Coulton

SOLICITOR FOR THE APPLICANT: Steven Stefanou & Co Solicitors

COUNSEL FOR THE RESPONDENT: Mr Batey

SOLICITOR FOR THE RESPONDENT: York Law Family Law Specialists

Orders

1. That the application at paragraphs 5(a) and (c) of the mother’s Amended Application in a Case filed on 16 June 2016 be dismissed.

2. That an Independent Children’s Lawyer be appointed for the children B born on … 2001 and C born on … 2005 and the Court requests the Director of Legal Aid NSW to make the appropriate arrangements.

3. That the parents each forward to the said Director a copy of all current applications and supporting material within 28 days.

4. That all costs are reserved.

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 Thommen & Thommen 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 SYDNEY

FILE NUMBER: SYC 7060 of 2015

Ms Thommen

Applicant

And

Mr Thommen

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application by Ms Thommen (“the mother”) for orders to vary consent orders which were made by the Senior Registrar on 17 March 2016 in relation to travel by a child B born in 2001 and who is therefore 15 years of age. 

2. Order 2 of the orders provides that the father is permitted to take the child B overseas to the United Kingdom for the purpose of enabling him to participate in the D School 2016 program which will commence on 11 July 2016 and continue for two weeks. 

3. Order 3 of the orders provides that within 14 days each of the parties shall properly execute a Passport Application to enable the father to obtain a Passport for the child B, which Passport is to be held by the father.  On the child B’s return to Australia after conclusion of the overseas trip referred to in Order 2, the father is to deposit B’s Passport at his solicitor’s office not to be released to either party unless both parents agree in writing or pursuant to a Court Order. 

4. Order 4 of the orders provides that the dates of departure of the child B with the father for the trip provided for in order 2 shall not be more than a few days prior to 11 July 2016 and that the return to Australia of the child B with the father from the said trip shall not be more than a few days after the conclusion of the program, about 24 July 2016.

5. Order 5 of the orders provides that the mother do all acts and things to positively facilitate B’s travel with the father to the UK as provided for in order 2.

6. The mother seeks orders in her Amended Application in a Case filed on 16 June 2016 in accordance with paragraphs (5)(a) and (c) thereof.  Paragraph (5) is as follows: 

   5.That paragraphs 2, 4 and 5 of the Orders made on 17 March 2016 by Senior Registrar Campbell shall be varied as follows:

   (a)within two (2) days from the date of these Orders, the Father shall provide to the Mother the current and valid Australian Passport of the child, [B] (D.O.B… 2001) (‘[B]’);

   …

   (c)[B] shall be permitted to exit the Commonwealth of Australia to participate in the [D School] program for the period between 2 July 2016 and 26 July 2016 and during that period shall reside and spend time in The UK with his biological Aunt, [Ms E]. 

7. B’s father, Mr Thommen (“the father”) opposes that application and seeks orders to the effect that that application be dismissed.  During the course of the day the father’s counsel handed to the Court a proposed minute of orders by the father which seeks that the mother’s application be dismissed.  At paragraph 2 it seeks that the child B travel to the United Kingdom for the period of 2 July 2016 to 24 July 2016 in the company of either the mother or the father.  At paragraph 3 it seeks that in the event that the child B travels with the mother to the United Kingdom then (a) the child C – who is B’s sister – live with the father for specified period;  (b) that the mother provide the father with details of all accommodation at which the child B and she will reside whilst they are in the United Kingdom;  (c) that in the event that the mother travels to the United Kingdom with B for the period 2 July 2016 to 26 July 2016 and C is residing with the father during that period, the father shall facilitate telephone and/or Skype contact between the mother and C as agreed between the parties, or failing agreement, every third evening between 6 pm and 8 pm.  And then in the event that the child B travels with the father, the father provide the mother with the details of all accommodation, that he facilitate telephone or Skype contact between mother and B, and certain other orders.  And then paragraph 5 seeks that whichever parent accompanies B to the UK shall be responsible for all travel and accommodation costs of B and themselves incurred in the proposed travel.  And there is another order sought which is to appoint Dr F, psychiatrist, as single expert to prepare a family report.

8. The brief background matters are that the parties married in 1989.  They separated on 14 September 2013.  They were divorced on 22 June 2015.  There are three children G born in 1998 and who is almost 18 years of age, the child the subject of the present application B born in 2001 who is 15 years of age and C born in 2005, and who is approximately 10½ years of age. 

9. The father has re-partnered, his partner being Ms H.  The mother has not.  The parents remain engaged in substantive disputation concerning parenting arrangements for the children.  Given the ages of the children, in reality the substantive proceedings would really only apply to C.  But a serious issue has arisen in relation to B.  All children have been actively involved in artistic performance since they were four years of age and are part of a privileged group earmarked for future development.  They are classified as students of an interstate / international training program. 

10. B’s teacher is Ms I of the I School.  Ms I has recommended that B participate in the D School in 2016.  This will be held in the UK in July 2016.  This opportunity is very important to B’s artistic development.  B has been accepted into the school out of approximately 1500 applicants worldwide.  Both B’s parents are keenly of the view that he should participate, as is B.  But the parents have not been able to agree on who should accompany B for this purpose. 

11. In February 2016 the mother proposed to the father that B’s aunt Ms E would travel to the UK with him, supervise him and live with him during his required time to undertake the school program.  The mother sought the father’s consent to an application for a passport for B.  The father disagreed with the mother’s proposal, but agreed to sign the passport application for B, and for the passport to remain within this registry of the court until the dispute was determined by the Court. 

12. This issue became the subject of interim proceedings as I have indicated, those being listed before Senior Registrar Campbell on 17 March 2016.  What occurred on that occasion was that the parents eventually agreed to the orders which I have indicated, these being orders that B would travel to the UK with his father.  The mother said that she agreed to that proposal, because first she wanted B to have the study opportunity, and she also wanted to provide an opportunity for B to be able to have an opportunity to repair his damaged relationship with his father.  The mother said that she did not discuss what she intended with B before agreeing to the father’s proposal.  The mother also said that on 17 March 2016 B had not had opportunity to participate in the Court’s child responsive program, and that his views had not been taken into account.

13. The mother said, and this is conceded, that after those consent orders were made on 17 March 2016, B told her that if he had to go to the school in the UK with his father, he would rather not go.  There is ample evidence to indicate that the child has not resiled from that view. 

14. On 24 March 2016 B sent his father a text message, informing him that he did not propose to go to the UK with him.  The mother said that on 4 April 2016 B said that he was adamant that he would not go with his father and that he would only go with his aunt, Ms I his teacher, or the mother. 

15. Then the parties had the child responsive program interviews, during which the father informed the family consultant that he would not force B to conform with his proposal if B did not wish to do so.  But that position appears now to have changed. 

16. The mother’s case is that it is clearly in B’s best interests to be able to undertake this opportunity, that all the evidence which should have been before the Court on the earlier occasion was not before the Court, that subsequently she has found out from B that whatever she thought and agreed to have put in place on 17 March in his best interests (being a requirement under court order for the father to be permitted to take B to the UK, and for B to participate in that) has changed because of B indicating to her and to his father, to Ms I and probably to others that he would not be going to the UK with his father if that was the only way that he was going to be able to go. 

17. Counsel for the mother says that is a change of circumstances and the Court ought to simply accept that as changed circumstances and vary the order. 

18. The father’s case is firstly that he has always been very supportive of B.  He said that he has taken B to various competitions, attended B’s performances including every end of year performance.  The father said that he has made contributed materially to B’s performances and has attended performance open weeks.  The father said that he opposes the mother’s sister accompanying B to the UK because he said that she has colluded with the mother in endeavouring to exclude him from the children’s lives.  He said that if the aunt is permitted to take B to the UK this will reinforce a view that their actions were justified and further B’s alienation from him.

19. In any event, it was submitted on behalf of the father that this matter was determined by the Court on 17 March 2016 by the parties having put in place consent orders which were then made by the learned senior registrar.  It was submitted that this Court is now functus officio because the Court has determined that application. 

20. I must say, as I indicated to the parties, I agree with that.  What is now before me is the same application that was before the learned Senior Registrar.  It has been determined.  As I indicated to all present, what should have occurred as a matter of law is that upon the mother deciding that she disagreed with the orders that she had asked the Court to put in place on 17 March, the appropriate course was to make an application for a review of the registrar’s decision.  That needed to be done in time.  Being a hearing de novo, new evidence about whatever had transpired, including the child saying that he did not wish to go to the UK if he had to go with his father could have then been put before the Court, and some further submissions made.  That being a hearing de novo, the Court would have simply started again and considered the matter on its merits. 

21. I do not accept that what Ms Coulton puts to the Court constitutes a sufficient change in circumstances within the meaning of the well-known authorities to warrant the Court going back and re-examining the order that it has already made.  What appears to have happened in this case is that unfortunately there should have been an appointment of an independent child lawyer, especially for a child the age of this child, and any views that the child and other relevant matters could have been put before the Court at the time of the making of those consent orders.  But that has not been the case.  So in my view the appropriate course is to dismiss the application.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 27 June 2016.

Associate:     

Date:              4 July 2016