Vaughton and Randle - [2018] FamCA 382

FAMILY COURT OF AUSTRALIA

VAUGHTON & RANDLE

[2018] FamCA 382

FAMILY LAW – CHILDREN – Interim matters – Best interests of the child – Application to remove child from the Commonwealth of Australia for the purposes of a wedding and family holiday – Whether a security sum is required – Quantum of the security sum to be provided.

Family Law Act 1975 (Cth) ss 60B(1), 60CA, 60CC(2), 60CC(3)

Line & Line (1997) FLC 92-729

APPLICANT:

Mr Vaughton

RESPONDENT:

Ms Randle

FILE NUMBER:

ADC

3046

2010

DATE DELIVERED:

28 May 2018

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

28 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

Orders

That order 5(d) and order 5(e) of the orders made 13 March 2014 be suspended for the period 12 June 2018 to 19 July 2018.
That the mother be authorised and permitted to apply for and receive an Australian Passport for the child R born … 2008(“the child”) and if necessary without the consent of the father.
That the father co-sign the Passport application for the child by 4pm on 28 May 2018.
That if the father refuses or neglects to sign the said Passport application THEN if necessary and on proof by affidavit of it being required, a Registrar of this Court be authorised to sign such application for an Australian Passport to issue in respect of the said child forthwith.
That the child is permitted to travel overseas with the mother between 19 June 2018 and 17 July 2018 on the strict condition that the child shall attend only those countries that are signatory to the Hague Convention.
That the Passport of the child will be surrendered to the Adelaide Registry of the Family Court of Australia by the mother within seven (7) days of return by 4pm on 17 July 2018.
That the child spend time with the father as follows:-
a.   From the conclusion of school Friday 11 May 2018 to the commencement of school on Tuesday 15 May 2018;
b.   From the conclusion of school on Friday 25 May 2018 to the commencement of school on Tuesday 29 May 2018
c.   From the conclusion of school on Friday 8 June 2018 to the commencement of school on Tuesday 12 June 2018;
d.   For such times as the parties may agree between the conclusion of school Friday 15 June 2018 until the commencement of school on Monday 18 June 2018;
e.   From 5pm on Wednesday 18 July 2018 to the commencement of school on Thursday 26 July 2018.
That the mother forthwith place the sum of TEN THOUSAND DOLLARS ($10,000) (the security sum) by payment into the Registry of the Family Court of Australia by 4pm on 15 June 2018 with such deposit to be maintained until 17 July 2018 whereupon the lump sum on deposit together with any interest that may have accrued be returned to…

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 Vaughton and Randle

Details

AGLC: Vaughton and Randle [2018] FamCA 382
Case: [2018] FamCA 382
Decision Date: 28 May 2018

CaseChat Overview and Summary

The case of Vaughton and Randle concerned an application before Berman J of the Family Court of Australia. The dispute involved orders sought by the mother concerning the child R, including the ability to obtain an Australian passport for R and to travel overseas with R. The father opposed aspects of these applications, particularly concerning the child's travel and passport arrangements.

The court was required to determine whether to grant the mother authority to apply for and receive an Australian passport for the child R, potentially without the father's consent. Further, the court had to consider whether to permit the child to travel overseas with the mother during specific periods and under what conditions. The court also had to address the father's right to spend time with the child and the provision of security by the mother for the child's travel.

Berman J reasoned that it was in the child's best interests to allow the mother to obtain a passport and travel overseas, subject to strict conditions. The court ordered that the father co-sign the passport application by a specified date, with a Registrar authorised to sign if the father refused. The child was permitted to travel with the mother between specified dates, provided the travel was only to countries signatory to the Hague Convention. The child's passport was to be surrendered to the court upon return. The court also made detailed orders for the child to spend time with the father during specific periods. To ensure the child's return, the mother was ordered to deposit $10,000 as a security sum with the court, to be held until after the child's return. The court further ordered that if the security sum was not deposited, the mother would be restrained from removing the child from Australia, and the Australian Federal Police would be notified to place the child on the Airport Watch List.

Orders

Orders of the court

That order 5(d) and order 5(e) of the orders made 13 March 2014 be suspended for the period 12 June 2018 to 19 July 2018.

That the mother be authorised and permitted to apply for and receive an Australian Passport for the child R born … 2008(“the child”) and if necessary without the consent of the father.

That the father co-sign the Passport application for the child by 4pm on 28 May 2018.

That if the father refuses or neglects to sign the said Passport application THEN if necessary and on proof by affidavit of it being required, a Registrar of this Court be authorised to sign such application for an Australian Passport to issue in respect of the said child forthwith.

That the child is permitted to travel overseas with the mother between 19 June 2018 and 17 July 2018 on the strict condition that the child shall attend only those countries that are signatory to the Hague Convention.

That the Passport of the child will be surrendered to the Adelaide Registry of the Family Court of Australia by the mother within seven (7) days of return by 4pm on 17 July 2018.

That the child spend time with the father as follows:-

a. From the conclusion of school Friday 11 May 2018 to the commencement of school on Tuesday 15 May 2018;

b. From the conclusion of school on Friday 25 May 2018 to the commencement of school on Tuesday 29 May 2018

c. From the conclusion of school on Friday 8 June 2018 to the commencement of school on Tuesday 12 June 2018;

d. For such times as the parties may agree between the conclusion of school Friday 15 June 2018 until the commencement of school on Monday 18 June 2018;

e. From 5pm on Wednesday 18 July 2018 to the commencement of school on Thursday 26 July 2018.

That the mother forthwith place the sum of TEN THOUSAND DOLLARS ($10,000) (the security sum) by payment into the Registry of the Family Court of Australia by 4pm on 15 June 2018 with such deposit to be maintained until 17 July 2018 whereupon the lump sum on deposit together with any interest that may have accrued be returned to the mother.

That the mother shall forthwith advise the father that she has deposited the said security sum with the Court but in the absence of the advice or that the said sum has been deposited, the mother is restrained and an injunction is granted restraining her from removing the said child from the Commonwealth of Australia and in those circumstances but not otherwise until further order the Australia Federal Police shall place the name of the said child R born … on the Airport Watch List in force at all points of arrival and departure preventing the child from being removed from the Commonwealth of Australia and the child’s name to remain on the Watch List until further order of this Honourable Court.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.