Vardy and Vardy

[2017] FCCA 3345

FEDERAL CIRCUIT COURT OF AUSTRALIA

VARDY & VARDY [2017] FCCA 3345

Catchwords:
FAMILY LAW – Ruling on father’s application to take child to (omitted) for 4 week holiday and consideration of ancillary issues.

Applicant: MS VARDY

Respondent: MR VARDY

File Number: DGC 1757 of 2017

Judgment of: Judge Burchardt

Hearing date: 21 December 2017

Date of Last Submission: 21 December 2017

Delivered at: Dandenong

Delivered on: 21 December 2017

REPRESENTATION

Counsel for the Applicant: Ms Vardy, In Person

Counsel for the Respondent: Ms Cullen

Solicitors for the Respondent: Neesham White Gentle

ORDERS

1. The matter be adjourned to this Court for directions before Judge Jones on 28 February 2018 at 10.00 am as previously listed.

2. Orders 3 and 4(a) to (d) inclusive of Her Honour Judge Jones made 28 November 2017 (“the 28 November 2017 orders”) remain in full force and effect.

3. Pursuant to order 4(d), the Mother handover the child X born (omitted) 2008 (“the child”) to the Father at 2.00 pm on 22 December 2017.

4. The child’s passport (passport number (omitted)) currently held at the Federal Circuit Court at Dandenong Registry be released to the father today so that the child may travel and spend time with the father in accordance with the 28 November 2017 orders.

5. Changeover on 22 December 2017 be attended by the Mother, Father and child only and take place at the (omitted) Police Station, with:

   (a)The Mother to provide the Father with the child’s Epipen at changeover; and

   (b)The Mother is hereby restrained from attending the airport on the day the child is scheduled to fly out or return from his holiday with the Father, or allowing any other person to do so.

6. In the event that the Mother fails to comply with Order 3 herein, a recovery order shall be issued for the recovery of the child, who will be placed in the Father’s care until further order.

7. A request for a recovery order can be made by telephone to the Chambers of Judge Burchardt on a breach of order 3.

8. There be liberty to the Father to apply on short notice in the event that the Mother fails to comply with the terms of this order, such application to be heard before His Honour Judge Burchardt if available.

9. The parties shall each inform the other as soon as reasonably practicable of any serious illness or injury sustained by the child whilst in their care and further provide particulars of any treatment required or received by the child, together with the name and address of the treatment provider and/or location at which the child is hospitalised.

10. Each party shall promptly provide the other party with information about the health and wellbeing of the child so that they both have the opportunity to be involved in any discussions which may arise with the child’s medical treaters.

11. Each party is hereby restrained from discussing the Court proceedings or allowing any other person to do so, in the hearing or presence of the child.

12. Each party is hereby restrained from denigrating, rebuking or speaking negatively about the other parent or their family, or allowing any other person to do so, in the hearing or presence of the child.

13. The Mother is to file and serve any amended initiating applications on or before 31 January 2018. 

14. The Mother be permitted to have phone, Skype or Whatsapp contact with the child on Wednesday evenings at 7.00pm Australian Eastern Standard Time and Sunday evenings at 7.00 pm Australian Eastern Standard Time for the duration of access by the Father.

15. Costs be reserved.

AND THE COURT NOTES THAT:

(A).Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, 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 the Attachment and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Vardy & Vardy is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1757 of 2017

MS VARDY

Applicant

And

MR VARDY

Respondent

REASONS FOR JUDGMENT

1. The father wants to take X, a young lad born on (omitted) 2008, to (country omitted) the day after tomorrow for four weeks.  The mother opposes this and wants the time spent in Australia.  There are a number of ancillary disputes about the effect of a Watch List order previously ordered and removed and issues to do with the passport and ancillary issues and the like. 

2. The matter can only be understood properly in the context of its history.  On 9 June 2017, the mother applied to this Court ex parte for a Watch List order.  The affidavit which accompanied that application read as follows, in paragraphs 10 and 15 to 18:

   I am concerned the father may come to Australia and take the child with him to the (country omitted) or arrange for someone to take the child from school and arrange for him to leave Australia for the (country omitted) with the passport the father has.  The husband had taken the child to the (country omitted) in (omitted) 2015 without my consent. 

   I then followed them, and we lived in the same house together until separation in December 2015. 

   I only got the child’s Passport from the father on 20 April 2017, and the child and I returned to Australia on (omitted) 2017. 

   I am concerned the father will take the child again.  He has the passport and money to do this.

3. The Notice of Risk that accompanied the application did not raise any concerns whatever about the father, except the possibility of flight to (country omitted).  I should interpolate and say I know that (country omitted) is technically only one of the provinces of the (country omitted), but I am afraid it is the phrase I am familiar with from my own life.  A Watch List order was then made on 9 June 2017.  The mother did not, as she should have done, reveal the prior proceedings in (country omitted).

4. On 13 July 2017, an affidavit was filed by an interpreter, which relevantly annexed proceedings of the (country omitted) Court.  I note that the application that was determined in (country omitted) on 10 March 2017 had been lodged as recently as 17 November 2016.  I also note that a subsequent appeal was determined within a few months.  Nonetheless, there had been other proceedings on foot before that time.

5. X lived the first seven years of his life in Australia, and the decision of the Court in (country omitted) noted that this was, to all effects and purposes, so to speak, his country.  Relocation was contemplated but clearly conditional on the child spending four weeks with the father in (country omitted), unless otherwise agreed, in (country omitted) or Australia.  This was described as a minimum regime by the Court and was to take place year-about, with odd years being the first four weeks with the father of the summer holidays.  I note that includes, obviously, this year. 

6. The father next filed an affidavit on 1 November 2017, in which he made complaint about interruptions to his Skype time with the child.  On 23 November 2017, he filed a further affidavit in which his complaints about Skype time were set out in greater detail.  He gave details of the way in which he moved to (country omitted) in mid-2015 and separation, as he put it, in June 2016.   Those dates are disputed by the mother’s later affidavit material. 

7. As I have already indicated, an appeal in (country omitted) was subject to a decision on 31 October 2017.  That Court was aware of the Watch List order made by this Court, and the Court was also aware of the mother’s concerns that the father might not return should he take the child to (country omitted).  I note further the passage at page 9 of the appeal Court’s decision in these terms:

   The parenting arrangement sought by the man in the event that X were to principally reside with the woman hardly differs from the provision made as part of the appealed order, except that he would be permitted to spend the holidays with X not just in (country omitted) but also in the (country omitted) and Australia. In view of maintaining a close relationship with his father, the Court deems - as has also been considered in the court in the proceedings pending regarding the principal place of residence and parenting arrangement - it desirable that X has the opportunity to stay in the father’s living environment and to then have contact with the family on his father’s side during contact with his father.  The court shall therefore grant the father’s application on this point.  

8. On 28 November 2017, Judge Jones made orders which effectively reflected the orders made by the Court in the (country omitted).  On 12 December 2017, the father filed an application in a case.  This essentially raised issues as to non-compliance with the orders as to the provision of the passport.  On 13 December 2017, that application was abridged and heard by me, and I had to compel the mother, under threat of arrest, to come to Court and to provide the passport.

9. Her answers about the passport were manifestly unsatisfactory and evasive.   On 19 December 2017, the mother filed a further affidavit in which she makes a number of allegations against the father.  I note inter alia that she says that she left the parental grandmother’s home in June 2016 and then says:

   I spent the next two years fighting. 

10. That is obviously not correct because she left in less than a year’s time on (omitted) 2017.  Her affidavit does annex material from various medical practitioners.  I accept the submission of counsel for the father that these materials are self-serving.  They suffer all the difficulties that such materials do, where only one side of the story has been heard, although I accept that some of X’s behaviour and attitudes are obviously concerning. 

11. On 20 December 2017, the father filed an affidavit which, relevantly for these purposes, annexes his itinerary and tickets to and from (country omitted).  I would interpolate and say the (country omitted) Court found both parties to be intransigent and difficult at times in their conduct of the proceedings, and those qualities appear to me to subsist in this Court.

12. I will turn now to the submissions made by the parties.  Counsel for the father pointed to the fact that cohabitation commenced in (omitted) 2005.  Parties married on (omitted) 2006, and X, as already noted, was born on (omitted) 2008.

13. Divorce took place on 6 March 2017 in the course of the initial proceedings in (country omitted) to which we have referred.  A period of earlier separation is not, in my view, relevant.  The parties moved to (country omitted) in 2015, and it seems clear that the father went ahead with the child with the mother’s agreement, contrary to the affidavit filed in the initiating proceeding in this Court in June of this year.  Very soon or relatively soon after her arrival, the father told her that the relationship was at an end.

14. This led to extensive litigation in the (country omitted), which has only recently concluded.  Counsel traversed the history of the matter in the Court, which I have already set out, and counsel submitted that the mother has repeatedly breached Court orders.  She submitted that there is no risk of him absconding with the child, a failure to permit the child to travel will deny the child access to his (nationality omitted) heritage, and she raised the possibility the child might have been coached in relation to the interaction with the professionals, whose materials are annexed to the mother’s most recent affidavit.

15. The Watch List order made in June was contrary to the (nationality omitted) orders, and the mother failed to tell the Court about those orders.  The orders were delayed in service, although I think that point is misconceived.

16. Counsel pointed to the failure to facilitate Skype time, and the mother’s refusal to initially, at least, hand over the passport.  It was strongly submitted that the father will not abscond, and counsel referred to the mother’s initiating materials and the absence, as I have commented, of any serious suggestion of risk. 

17. I note that counsel agreed that there should be Skype contact via Skype or email at the child’s request while in the father’s care.  With a child of nine, while that order would be satisfactory in itself, were the overseas travel to be permitted, it must plainly involve a regime for proper time in any event.

18. The mother’s aunt, who by leave, in the particular and extraordinary circumstances of the case, was permitted to act as an advocate, dealt at some length with responses to the various criticisms made of the mother’s conduct post return to Australia.  She posited perhaps next year there could be travel to (countries omitted), but pointed to the fact that this would be the first time in many years that the child would have been spending Christmas in Australia.  Given that the parties only went to (country omitted) in 2015, he has spent two Christmases in (country omitted), but there is nothing in the material to suggest he had done so before that. 

19. She pointed to the ongoing Court battle, both in this country and the extensive proceedings in (country omitted), and she pointed to the concerns about the child’s wellbeing both when he was with the parents in (country omitted) and here.  She pointed to the fact that there is simply no capacity on the mother’s part to litigate again in (country omitted), and indicated that an absence of contact had been undertaken on the basis of medical advice. 

20. After the luncheon adjournment and immediately before I issued this ruling, the aunt again addressed the court and suggested a number of appropriate orders in the event that travel was to be permitted.  They include a security to be ordered against the father, details as to who is looking after X when he is in (country omitted) in the event that the father is working, handover to take place at the time and point of departure and return also, and various ancillary orders dealing with possible over-holding and/or failure by the father to comply with the orders.

21. In my view, the proper outcome of this application is clear.  It is quite apparent that the Court in (country omitted) only permitted a return to Australia on the footing that, first, the mother had appropriate arrangements in place, and second, on the footing that there would be four weeks with the father each long summer holidays.  It was less than honest of the mother to fail to reveal the (country omitted) Court case orders when she was seeking a Watch List order. 

22. As the Court in (country omitted) rightly opines, there is an obvious benefit to the child then having some experience of an input from his (nationality omitted) heritage.  If his relationship with his father is presently somewhat impacted, a period of time with him will undoubtedly improve it.  Indeed, that is implicit in the orders that the mother seeks.  She is not opposing the period of time, but rather where it takes place.  It is clear that the father will return the child.  There is no earthly benefit to him in failing to do so. 

23. (country omitted) is a Hague Convention country, and on the materials as they reveal the matter, proceedings in that country are commendably prompt.  Furthermore, he will be aware, because I am telling him now, that were he to over-hold, it would likely to be absolutely fatal to his case whether in (country omitted) or here in the future.  I should say that this Court gives weight, if I may respectfully say, to the observations of the courts in the (country omitted).  The reasoning set out in the two decisions is, if I may say so, clear and fair and reasoned, and I have proper regard to it.  I am prepared to make orders as sought by the father, subject to some amendments.  The orders in respect of not discussing the court proceedings and not denigration to the other party should be made in respect of both parents.

24. That leaves, however, some other matters still outstanding.  The first question raised is the question of a bond on the father’s part.  It is far too late to contemplate that at this late stage, made on oral application immediately before final ruling is given.  The father has already had to buy the airfares, and it is just not appropriate to contemplate a bond at this stage, nor do the materials suggest it is necessary.

25. I will require clarification as to who will be looking after X while he is in the (country omitted).  I would expect that to be with the father.  I see no reason to make an order that he remain in the (country omitted) and not go to any other country, provided he remains in his father’s care.

26. Handover may well be a difficulty for the parties.  In my view, it should take place tomorrow at 2 pm at the police station as nominated.  True it is this is going to be a bit of a lurch for this child, but the fact is that it was always contemplated, and it will have to be addressed.  The thought of the child being taken to the airport with the mother and her family all deeply concerned and anxious is not one to be entertained.  Changeover should simply happen and be done tomorrow at 2 pm.

27. The child should also spend time with the mother by Skype as sought but not at 6 pm Australian Eastern Standard Time because with an 11-hour time difference at the moment, that is 7 in the morning.  The time for Skype as sought in the proposed order 6 by the mother, which I am going to order, will be 7 pm – that is to say 8 am in the (country omitted) – on Wednesdays and Sundays.

28. Otherwise, the matters raised, in my view, should be the subject of further debate before her Honour Judge Jones when the matter comes back on 28 February 2018 at 9.30 before Judge Jones.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  24 January 2018