TIPPER & TODD (No.2)

[2016] FCCA 1542

FEDERAL CIRCUIT COURT OF AUSTRALIA

TIPPER & TODD (No.2) [2016] FCCA 1542

Catchwords:
FAMILY LAW – Children – Parenting Orders – Overseas travel – Family Law Watch List – passport – child’s passport.

PRACTICE AND PROCEDURE – Slip Rule – amendment of orders under slip rule.

Legislation:

Family Law Act 1975(Cth), ss.60CA, 65Y

Cases cited:

Tipper & Todd [2014] FCCA 1544

Tipper & Todd (No.2) [2014] FCCA 2231

Applicant: MS TIPPER

Respondent: MR TODD

File Number: SYC 1658 of 2014

Judgment of: Judge Scarlett

Hearing date: 22 June 2016

Date of Last Submission: 22 June 2016

Delivered at: Sydney

Delivered on: 22 June 2016

REPRESENTATION

Solicitor for the Applicant: Mr Marsh

Solicitors for the Applicant: Paul Marsh & Associates Solicitors

Solicitor for the Respondent: Ms Wallace

Solicitors for the Respondent:	Andrew Harris & Associates
Independent Children's Lawyer:	Ms Weaver
Solicitors for the Independent Children's Lawyer:	Legal Aid NSW

ORDERS

1. Order 9(b)(ii) made on 21 June 2016 is varied so as to read “In respect of the Christmas/January school holidays, X is to spend the first half of the 2017-2018 Christmas/January school holidays and each alternate Christmas/January school holidays thereafter with the Mother, such time to commence on the last day of Term 4 and to conclude at 5:00 pm on 8 January AND X is to spend the second half of the 2018-2019 Christmas/January school holidays and each alternate Christmas/January school holidays thereafter with the Mother, such time to commence at 5:00 pm on 8 January and conclude on the day two (2) days prior to the day when the child is required to attend school at the commencement of Term 1.”

2. Order 13(b) made on 21 June 2016 is varied so as to read “The Mother may communicate with X each Tuesday, Friday and Sunday between 6:00 pm and 7:30 pm when she is not otherwise spending time with the child; and”

3. The passport for the child X born (omitted) 2012 is to be held by the Registrar of the Sydney Registry of the Court for a period of two (2) years from the date of these Orders after which date it is to be released to the care of the Father subject to the provisions of the immediately following Order.

4. The Registrar may release the child’s passport to the care of either the Father or the Mother prior to the expiration of the said period of two (2) years in the following circumstances:

   (a)Upon receipt of a written authority signed by the Mother and the Father; or

   (b)Further order of the Court.  

5. Each of them the Mother MS TIPPER and the Father MR TODD is restrained from removing or attempting to remove or causing or permitting the removal of the child X a male born on (omitted) 2012 from the Commonwealth of Australia for a period of two (2) years from the date of these Orders UNLESS with the consent in writing of each of them the Mother and the Father or in accordance with an Order of the Court.

6. IT IS REQUESTED that the Australian Federal Police give effect to the preceding Order by placing the name of the child X a male born on (omitted) 2012 on the Family Law Watch List in force at all points of arrival and departure from the Commonwealth of Australia and maintain the said child’s name on the Family Law Watch List for a period of two (2) years from the date of these Orders.

7. Upon the expiration of the period referred to in the immediately preceding Order and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s name from the Family Law Watch List.

8. In the event that either party wishes to travel internationally with the child X:

   (a)the party wishing to travel with the child must give the other party no less than eight (8) weeks’ notice of his or her intention to travel internationally with the child;

   (b)the party wishing to travel with the child must provide to the other party no less than four (4) weeks prior to the date of intended travel copies of all flight information, itineraries, accommodation information, addresses and contact details of where and with whom the child will stay whilst out of Australia; and

   (c)the other party must give written notice to the party wishing to travel with the child no later than two (2) weeks prior to the date of intended travel whether or not he or she consents to the child travelling internationally.      

IT IS NOTED that publication of this judgment under the pseudonym Tipper & Todd (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1658 of 2014

MS TIPPER

Applicant

And

MR TODD

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for orders relating to a child’s passport and for possible overseas travel and also to make some amendments to final Orders handed down yesterday. It has been put by the solicitor for the Applicant, Mr Marsh and the solicitor for the Respondent, Ms Wallace, that Orders 9(b)(ii) and 13(b) may require correction under the “slip rule”.

2. As the matter has remained in the List from yesterday, there is no impediment to either of those issues being considered. 

3. I did yesterday hand down some lengthy and extensive parenting orders relating to parenting of the parties’ child, X, who was born on (omitted) 2012.  He is four years of age.  Whilst orders will provide that he will live mainly with his father, as Mr Marsh put it this morning, the orders contemplate that his mother will remain a significant part of his life. 

Slip Rule

1. Mr Marsh drew my attention to Order 9 and in particular, Order 9(b), paragraph (ii), which relates to what will happen once the child starts school at the beginning of the school year in 2017 and in particular, the school holiday time and how it will be divided between the parents.  Mr Marsh drew my attention to the provisions of paragraph (ii) which is a fairly lengthy paragraph where reference is made to the 2017/2018 Christmas/January school holidays and what was intended to be the lengthy school holidays for the following year and henceforth. 

2. It was submitted by Mr Marsh that there appeared to be an error in the latter date otherwise the orders I am being referred to would show that X would spend the first half of the Christmas/January school holidays with the Mother and then would spend the second half of the holidays with her.  He is of course correct.  There is a typographical error.  Mr Marsh submitted that what was intended was that the second half of the paragraph providing the child was to spend the second half of the school holidays should relate not to the 2017/2018 school holidays but to the 2018/2019 holidays.  I went through my notes carefully and indeed I am confident to say that was in fact my intention and that the order needs to be corrected under the slip rule.

3. Very fairly, Ms Wallace for the Father drew my attention to the other anomalous situation being Order 13.  In that order, provision was made for the Mother to communicate with the child when the child was with the Father and the Father to communicate with the child when the child was with the Mother. 

4. Ms Wallace pointed out that Order 13(b) provided that the Mother may communicate with the child on Tuesdays, Fridays and Saturdays between 6pm and 7pm, whereas Order 13(c) provided that the Father may communicate with the child on Sundays, Wednesdays and Fridays between 6pm and 7.30pm.  She submitted that this was anomalous and that in fairness the time span should be the same in respect of each parent. 

5. Again, I have checked my notes.  It was clearly my intention that the time span should be a period not of an hour for the Mother but for an hour and a half, so that the same conditions applied to both the Mother and Father.  Again, that is a matter that can be corrected and will be corrected under the slip rule and I am indebted to Mr Marsh and Ms Wallace for drawing my attention to those matters.  It was especially helpful to have my attention drawn to them at a time when the matter was in the list and those oversights could be quickly remedied.

Passport and International Travel

1. The main reason, however, why the matter was brought back today from yesterday related to the question of the child’s passport being held by the Registrar and Ms Wallace for the Father sought that the passport should be returned.  Mr Marsh for the Mother sought a period of time to obtain instructions on that issue and submitted today that there was a need from his client’s point of view for some safeguards relating to the child being taken out of the country.

2. What his client sought was the preservation orders that were made on 16^th June 2014, being an order restraining the parties from removing the child from the Commonwealth of Australia, requesting the Marshal of the Court and officers of the Australian Federal Police and the police forces of the States and Territories to give effect to those orders, take all necessary steps to prohibit either party from removing or attempting to remove the child from the Commonwealth and order 3 providing that the child’s particulars should be placed on the Family Law Watch List.

3. The reasons given for those orders were that the Mother had considerable fears that the Father may avail himself of the opportunity to remove the child from Australia even though there would be restrictions placed upon either party doing so by the operation of section 65Y of the Family Law Act 1975 (Cth). That section provides in subsection (1) that if a parenting order is in force, a person who is a party to the proceedings or someone acting on behalf or at the request of a party must not take or send the child concerned from Australia to a place outside Australia except as permitted by subsection (2). And indeed, subsection 65Y(1) provides that that is a criminal offence subject to a penalty of imprisonment for three years.

4. Subsection (2) provides for a lawful way for a child to be taken out of the country if it is subject to parenting orders. If it is done with the consent in writing of each person in whose favour the order was made or if it was done in accordance with an order of a court under this Part of the Family Law Act 1975 or under a law of a State or Territory at the time of or after the making of the order.

5. What Mr Marsh submitted on behalf of his client was that the Father regarded himself as a person of (nationality omitted) heritage, he was residing in Australia, he had a background from (country omitted), he travels on a (country omitted) passport. He submitted that the father had an (nationality omitted) employer and had had further employment with (nationality omitted) companies.  He submitted that the Father had spent a significant period of his time of his life either in (country omitted) or in (country omitted) or in the (country omitted).

6. The concern that the Mother has was that the Father in her view does not have significant family ties to Australia and she fears the Father would take the child out of Australia if given the opportunity to do so.  His parents reside in (country omitted), although I am told that he has other members of his extended family who reside in Australia.  It was put, however, by Ms Wallace for the Father that he had sought certain orders in Response which he had filed which would provide for ample notice of up to eight weeks being given by either parent of any intention to take the child out of Australia.

7. Whilst he does have a (country omitted) passport, it was put that he in fact works for a company whose headquarters are in the (country omitted).  He seeks to obtain an Australian passport once he is in a position to do so and regards Australia as his home.  It was submitted that there was no need for lengthy and draconian orders which it is feared that the Mother proposes. 

8. Ms Weaver, the Independent Children’s Lawyer, submitted that the Independent Children’s Lawyer was not concerned that the Father had any great wish to remove the child from Australia permanently and I discussed certain options with the parties. 

9. One concern I have is that if the child’s name is placed on the Family Law Watch List for any indefinite period, it would remain there until he reached the age of 18.  He is now four years and five months and that would be a very lengthy restriction on the child’s freedom of movement with one or other parent.  It was also put, of course, by Ms Wallace that the Father does have hope that next year, he would be able to take X to the (country omitted) to attend a family wedding.  It would be unfortunate if the child were to miss out on that.

10. I have considered the fact that countries such as (country omitted) are not parties to the Hague Convention on the Civil Aspects of International Child Abduction, although I am informed that (country omitted) is such a party and (country omitted), where the paternal grandparents reside is certainly a party to the Convention.  (country omitted) where this proposed wedding is to take place next year is indeed a party to the Hague Convention.  I considered whether if the child’s passport was not to be returned at this stage, whether it should appropriately be held by the Registrar or whether it should be held by some other person such as the Mother’s solicitor.  I maintain the view that would be an unnecessary imposition on the Mother’s solicitor.  Whilst I have no doubt that he would comply with his obligation, I am concerned that it would create some work without increasing the child’s safety.

11. I have perused the orders that the Father sought in his amended response and I can understand the reasoning behind them.  I did consider the fact that when I made Order 2(d), providing that the Father was to have parental responsibility for the child that included a decision about the child’s place of residence within Australia.  I did so, mindful of a submission that had been put by Mr Lethbridge of senior counsel who appeared for the Mother that the original proposal which came from the Independent Children’s Lawyer did not impose any safeguards and would effectively allow the Father to take the child anywhere in the world.

12. Now, whether or not that was an exaggeration or not, it does seem to me that it represents a fear held by the Mother.  And this very much gets down to perception.  The degree of trust between the parents has regrettably been low.  It would be hoped that now final orders have been made that trust will build up but it cannot be hoped that that will happen miraculously overnight.  Time will tell.  There is no immediate proposal by the Father to take the child out of the country although as has been put to me, there is a proposal for an excursion for a family wedding next year.

Consideration

1. I have taken all of those matters into account.  I consider that, at this stage, some consideration should be given to the Mother’s concerns, although I do not see that there is any basis for a long-term restriction on international travel.  I have indicated a concern about lengthy Airport Watch List orders in any event.  It is the Court’s view and the view of the Australian Federal Police that a period of either two or three years will normally be sufficient and lengthy watch list orders can come back 10 or 12 years later and cause great difficulty to a teenage child, long after any threat of the child being unlawfully removed from the country has been removed.

2. I am of the view that for a period of time – and I consider two years to be appropriate – that the passport should be held by the Registrar but may be released prior to that time, either upon release of a written authority signed by the parties or if necessary, a further order of the Court.  I am of the view that I should make an injunctive order at this stage restraining the parties from removing the child from Australia.  But at this stage I am of the view that a period of two years would be adequate.

3. I will make an order that the child’s name remain on the Family Law Watch List but again, I am of the view that two years is adequate.  And of course, an order could be made either by consent or after a hearing removing the child’s name from the watch list prior to the expiration of two years should that be necessary.  I am of a view that if either party wishes to travel internationally with the child that they should give eight weeks’ notice to the other party, they should provide full details of itineraries and addresses some four weeks away to the date of travel.

4. But I also propose to order that the other party, the one who is not travelling, must advise the party who wishes to travel in writing no later than two weeks prior to the date of travel whether or not he or she consents.  Obviously you cannot have a situation where a party is waiting for the other party until it is too late for proper travel arrangements to be made because if there is an unreasonable refusal there would need to be sufficient time to make an application to the Court so that a proposal could be considered on its merits.  Those are the reasons why I propose to make the orders that I am about to make.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date: 23 June 2016