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 of 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

1. 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.

2. 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.

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

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vaughton & Randle 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 ADELAIDE

FILE NUMBER: ADC 3046 of 2010

Mr Vaughton

Applicant

And

Ms Randle

Respondent

EX-TEMPORE REASONS FOR JUDGMENT 

1. Ms Randle is the applicant mother to an Initiating Application filed 27 April 2018 seeking both interim and final orders at this stage seeking that the mother to be able to travel overseas with R born in 2008 (“the child”).  The respondent father to the proceedings is Mr Vaughton.  The parties are the parents of the child and the Court file reflects that the parties have been in ongoing litigation in respect to the parenting arrangements for the child since the proceedings were commenced in 2010.  The child is nine years of age and will celebrate his 10^th birthday later this year.

2. The history of the matter is complex.  The most recent significant judgment was delivered on 13 March 2014 after a hearing that concluded in December 2013.  Final orders were made in respect of the arrangements for the child to live with and spend time with his parents.  Paragraph 2 of the final orders provided that the parties have equal shared parental responsibility.  Paragraph 5 of the orders provided for the time that the child was to spend with his father.  It is a reasonable summary that the orders provided for the child to spend significant and substantial time with the father which comprised not only time during the week and thereby enabling each of the parties to exercise parental responsibility in relation to the child’s schooling and other aspects of his life, but also extensive time in school holidays.

3. The orders also provided for information in respect of the child to be readily available as between the parties with the clear intention that each of the parties were to maintain as much involvement with the child as was reasonable in the circumstances.  Following the making of the final orders, there were further proceedings which resulted in judgments on 11 September 2014 and 24 December 2014.  The parties were not able to agree on matters relating to the child’s educational arrangements.  There were also issues in respect of matters relating to the mother’s residence.

4. The file also reflects historically that there have been a number of applications for contravention in respect of the alleged conduct of each of the parties relating to compliance with orders of the Court, although the preponderance of those applications have been directed to the mother’s conduct.  Since the last of the interim arrangements between the parties were the subject of order, namely, matters relating to the child’s attendance at school, the issues between the parties appear to have settled down. 

5. What has now arisen is the application by the mother seeking orders that would enable the child to be taken out of the Commonwealth of Australia.  The focus of today’s hearing is not in relation to the final orders, but rather is as to the interim orders that the mother seeks.  Those orders are targeted to a specific purpose.  The initiating application is supported by two substantive affidavits.  The first being that of the mother filed 27 April 2018 and the second being an affidavit of Mr KK who is the mother’s fiancé.  Those two affidavits need to be read together.

6. The mother states that she now lives with Mr KK in a rental property in a suburb to the west of Adelaide.  The mother says that she and Mr KK are in a long-term relationship and that they have now formed what she describes as a close family unit.  Mr KK is a tradesman and the mother continues her employment as in a professional occupation.  Both are in full-time employment.  The mother’s now adult daughter, Ms Z, has graduated from year 12 and has been accepted into university.  She has not yet started her course.

7. The relevance to the mother’s application of her daughter, Ms Z’s, involvement is a factor, in that, whilst Ms Z is not now a resident of the mother’s and Mr KK’s household, it is intended that if orders are made in keeping with the application of the mother, Ms Z will also attend on the overseas trip.  The mother and Mr KK became engaged in September of 2017.  Ms Z is to be a bridesmaid and the proposal of the mother and Mr KK is that they would wish to be married in Europe.  There is a connection with Europe, in that, Mr KK is of European descent.  He is in Australia initially by way of a temporary visa and the process of his application for permanent residence has either been approved or it is in the final stages.

8. The intention of Mr KK and the mother is that they would wish to be married in Europe and their plans were also to involve the attendance of the child and Ms Z as part of the wedding party, but also then to enable an overseas holiday to take place.  The mother realised that her ability for the child to be taken from the Commonwealth of Australia was very much reliant, at least at first instance, on the consent of the father.  She sets out a history of attempting to mediate or communicate with the father about these matters.  The relevance of that is not to suggest that her application should have more merit because of her assertion that the father was uncooperative with the mediation process, but rather to explain why it is that in respect of a trip that is planned to occur as and from 19 June 2018 and to conclude with a return of the child on 17 July 2018 has been filed as recently as 27 April 2018.

9. I am not sure that I necessarily agree that the explanation the mother presents as the basis for what could be considered an unnecessarily truncated period of time between the filing of the application and the intended departure.  To some extent, such a consideration is irrelevant.  The matter comes on today, obviously with the mother relying upon her documents and it is a reasonable assessment that the documents set out accurately her position. There is no misunderstanding as to what it is she seeks to do.  It may be that the father disagrees with the basis of some of the assertions by the mother, but it is reasonable for me to find that for some months, the father is aware of what it is that the mother wants to do, namely, to take the child out of Australia for a period of about four weeks commencing on 19 June 2018.

10. The father’s position is straightforward.  He has indicated that at all times, he does not agree with the mother’s proposal and he opposes the orders she seeks.  As I have made clear today, he is entitled to do that and the success or otherwise of the mother’s application is not going to be influenced by any suggestion that the mother would ask me to make that the father has opposed mediation and has been resistant to any reasonable process by which the matter could be resolved.

11. The orders that the mother seeks are not matters about which the father is obliged to be reasonable.  He is entitled to adopt what may seem a harsh position as far as the mother is concerned, but in all the circumstances, a position, nonetheless, available to him, which is that he opposes the application.  It is as a result of his opposition that the matter is before me today.  If the father did not oppose, then obviously, there would be no need for the orders of the Court to be sought in terms of the travel plans that the mother proposes.

12. The notice that the father has had, though, of the general issue is important in the sense that an opportunity was offered to the father today to seek to adjourn the proceedings if he would have wished the opportunity to place documents before the Court setting out matters upon which he says the Court should take into account in determining the mother’s application.  His position is that he did not wish the matter to be adjourned, that he did not wish the opportunity to speak to the duty solicitor and that he was content with the matter to stand or fall on the Court’s view, albeit, on an interim basis of the mother’s affidavit material, but with his ability to make submission as to why the Court should not make those orders. That is entirely the prerogative of the father.  The Court has taken the opportunity to try and highlight that if there are matters upon which the father considered may be relevant to the confidence that the Court could place in the mother, he will be given the ability to do so.

13. The opportunity to place that evidence before the Court is only to be utilised by reference to affidavits upon which the father would seek to rely.  I am satisfied not simply because the matter comes before the Court at short notice, but the father has been in litigation in this Court and in respect of the matter now for a number of years and he has regrettably, for each of the parties, a good knowledge of the Court process.  The father is content for the matter to be dealt with today and that is a position that I respect. Each of the parties in this case, notwithstanding, their differences with each other, know their own mind. 

14. The mother recognises by reference to the interim orders that she seeks that in, at least, two areas, there is the potential for a difficulty to arise.  She seeks an amendment to paragraph 2 or 3 which will provide for a circumstance where if an order is made and the father does not wish to sign, or refuses to sign the passport, that an alternative arrangement can be made.  I’ve made it clear to the mother that it is not necessarily a matter for me to craft orders that better reflect either the orders she seeks and the purpose for which she seeks them or, indeed, in respect of any opposition by the father. The parties, however, are generally of the view that less litigation as between each of them is of greater benefit than giving either of them further opportunity to have to come back to this Court for relief. 

15. There is also a logistical issue in that I will not be in this registry from the end of this week for three weeks, and accordingly, any issues that might arise will potentially create a problem for the parties.  I will do the best I can to make orders that reflect appropriate arrangements, if it comes to that. 

16. The second amendment that the mother seeks is to paragraph 6(d) of the interim orders.  The order as currently drafted provides for the father to spend time with the child from 15 June 2018 until the commencement of school Tuesday, 19 June 2018, but the mother intends to leave on 19 June 2018 and the mother seeks an amendment to that order that the time conclude – if the child is not at school, that the father’s time with the child conclude at 12 noon on that day with a return to the mother at the LL Street Police Station. 

17. A further issue arose on the submissions of the father in relation to whether a security bond should be considered if the Court is minded to make orders in terms of the mother’s application.  No mention of a security bond was raised by the mother in her documents, but in response to the father’s submission, the mother indicates that she had given the matter some thought, but because of the financial circumstances that she and Mr KK find themselves in, there is financial difficulty in being able to comply with such an order over and above the figure of $5,000.  That issue, however, is a matter at large, in circumstances where the mother didn’t offer it initially, the father refers to it, and the mother’s response is that she had given the matter some consideration following her own research and had determined that whilst not part of her initial proposal, she would nonetheless be prepared to consider a sum if it was sufficiently modest. 

18. The mother sets out in her affidavit the proposed overseas arrangements.  She and Mr KK are to be married as indicated, and it is also intended that the period following the marriage will be the subject of, in effect, a family holiday which will bring to account the child attending a number of European cities with a final visit to a theme park as a preliminary birthday present for the child leading up to his return to Australia in July. 

19. The circumstances of the mother’s fiancé are relevant.  He is seeking a partner’s visa from the Department of Immigration and they expect this to occur in or about December 2018.  Mr KK has been working for a company in Adelaide since November 2014. Annexure “CM1” to his affidavit is a letter from his employer, MM Pty Ltd, confirming that Mr KK has been employed from November 2014 on an ongoing, full-time and permanent basis.  He applied in 2016 for his trade licence through the Office of Consumer and Business Affairs and he has applied for and holds a full and unrestricted licence.  There is sufficient evidence to substantiate his employment. 

20. Mr KK says that he has friends in Australia in relation to connections with ethnic his community, but it is his close and extended family in Europe that is the reason why there is an intention to marry there.  It is in part his proposal that he, the mother, the child and Ms Z attend the theme park as an early birthday present for the child.  There is also evidence in relation to the mother’s daughter Ms Z’s relationship with Mr KK.  She had initial concerns in respect of Mr KK’s engagement to her mother, but her recent observations have now allayed those fears. She has a beneficial relationship with Mr KK.

21. Accordingly, the mother’s proposal is that she be able to remove the child from the Commonwealth of Australia for a set period for the purposes of what is effectively an overseas holiday but with the focus being his attendance at the mother’s and Mr KK’s wedding in Europe. The application, whilst stand alone in the sense that it is not a part of any larger rearrangement of the parenting arrangements as between the parties, is nonetheless an application to be determined by principles relevant to parenting orders. The matters for determination are therefore of narrow compass. Section 60CA of the Family Law Act 1975 (Cth) requires the best interests of the children to be the paramount consideration and the interests test is to be considered by the application of the objects of s 60B(1) and by reference to the primary and the additional considerations in s 60CC(2) and (3).

22. The father’s simple but potentially potent submission is that the mother’s past conduct in terms of numerous breaches and non-compliance with orders is such that it places the child at risk of not being returned to the jurisdiction.  I am aware of the history of this matter.  I have been involved in a detailed way since July 2013.  I heard the final hearing, made final orders and have been involved in various applications since then. 

23. The mother responds to the father’s submission by highlighting that in the past three and a half years there has been little or no court activity, that matters have generally settled to one of acceptance by the parties as to their circumstances. Whilst I am certain that there have been aspects of the conduct by each of them which have irritated, aggravated or even from time to time upset the parties, nonetheless they each concede that the focus of the orders, namely to maintain an arrangement where the child’s best interests are best served by regulating the arrangements by which his parents are involved in his ongoing care, welfare and development.  The meaningful relationship that he should have with each of them is fostered by the provisions of the final orders.

24. Whilst it is regrettable that the parties still see the need to have handover effected when not at school at a police station, nonetheless the fact that there has been a significant period of the child being free of further litigation, assessment or being required to consider aspects of the manner in which each of his parents react towards him and to each other is such that the Court can take some comfort from the period of calm.  The father’s broad submission is that the mother is recalcitrant in relation to matters of compliance and it is his concern that if the mother’s application meets with success, there is a significant risk that the child would not be returned to the jurisdiction. 

1. The issue in dispute does not involve a consideration of parental responsibility nor an order for time spent.  I am also minded to consider that the court should be cautious in respect of any application for a child to be removed from jurisdiction.  The mother contends that the orders she seeks would see the child attending only those countries who are signatories to the Hague Convention.  Whilst I accept what she says about that, demonstrably once a child leaves the jurisdiction of Australia, it is difficult to have a child returned if they are in a non-Hague Convention country. I bring to account those matters.

2. In terms of the issue, it seems to me that it is one of weighing up the best interests of the child in the sense of what will the child get out of an overseas trip, in particular an overseas trip that would see the celebration and solemnisation of the mother and Mr KK’s wedding in Europe, the opportunity to travel with Mr KK, the mother and his sister Ms Z to places in Europe, against the possibility that the child would not be returned to the Commonwealth of Australia.

3. The father’s opposition to the mother’s application is not based upon the mother’s proposal being inappropriate or that the proposed itinerary or details of travel would pose a risk to the child but, rather, it is his concern that the mother’s history, albeit now prior to the making of final orders, is such that the Court could not have confidence she would not utilise an opportunity to remove the child from the jurisdiction.

4. The mother therefore considers the child would benefit from the overseas travel and, as indicated, the father is concerned as to matters relating to the risk. 

5. The mother relies upon her affidavit material and, in circumstances where there is no opposition to the objective matters raised in the mother’s affidavit, I accept matters that she raises and those raised by Mr KK as an accurate reflection of what it is that they intend to do, what the arrangements are, and their purpose.

6. The mother contends that the child has a strong and secure attachment to Adelaide, attends his current school, that the mother is now firmly based in South Australia, having had long and now secure employment, that her daughter Ms Z, whilst over the age of 18, is nonetheless intending to remain in South Australia, or at least in the Commonwealth of Australia, in order to make the most of the qualifications that she has now received, and that Mr KK has for now some years been actively engaged in the process of seeking to establish his connection and attachment to Australia in order to obtain not only a confirmation of permanent residency but presumably to remain in Australia.

7. The matters to be considered therefore have been the subject of judicial discussion.  The decision of Line & Line (1997) FLC 92-729 is often quoted:-

   4.47The fixing of an appropriate level of security in circumstances such as these is always a delicate matter, and one very much for the discretion of the trial Judge.  However, in exercising that discretion, we consider that a trial Judge should have regard to a number of relevant matters.  Some of the matters we will now identify have already been highlighted by Asche SJ in Keubler & Keubler (1978) FLC 90-434. We think it timely that we again draw attention to those matters we believe to be appropriate.

   4.48The first of those matters to which the trial Judge should have regard is the purpose of such security, in respect of which we adopt, with respect, the two-fold purpose referred to in the submissions of counsel for the husband and set out in paragraph 4.42 above namely:

   (a) to provide a sum which will realistically entice the person removing the children to return; and

   (b) to provide a sum to adequately provision the party left in Australia to take action and proceedings in Australia and overseas in an endeavour to obtain the return of the children.

8. There is nothing in respect of the mother’s affidavit material which would suggest that either she or Mr KK would have any interest in travelling to a non-Hague Convention country for the purpose of permanently residing there. 

9. The mother’s application is, in all the circumstances, reasonable and whilst there must always be a risk in respect of the Court considering whether to allow any child to exit the Commonwealth of Australia, in the circumstances of this case, taking into account the connection with Mr KK, his connection to Australia, the mother’s daughter Ms Z and the arrangements that she has put in place together with matters relating to the itinerary, I consider that, subject to the provision of a security bond, orders should be made that will enable the mother to remove the child from the jurisdiction of Australia.

10. The question of the security bond exercised the court’s attention.  The father nominated the sum of $50,000.  The mother nominated the sum of $5,000.  It is not a matter of a bidding war, nor is it a matter of splitting the difference or coming to the matter with some arithmetical formula but, rather, the purpose is to ameliorate the risk of the mother not returning the child and also to assist the father in terms of any action that he may take or be required to take in the event the child is not returned as indicated.

11. I am satisfied then that orders should be made which would enable this child to be taken from the Commonwealth of Australia as proposed by the mother.  I do, however, consider that a security bond should be required, and I accept the father’s submission that the sum of $5,000 is inadequate.

12. It may be that there is a difficulty as far as the mother is concerned and with the resources of Mr KK in raising a higher amount, but it is the view of the Court that orders should be made to require the mother to place a deposit of $10,000 with the court as security for the return of the child.

13. In further considering the orders that the mother seeks relating to the issue of the child’s passport, I am prepared to make orders that would require a registrar of this court to sign an application in respect of a passport for the child in circumstances where the father does not choose to do so.  It is entirely a matter for the father as to whether he does or he doesn’t.  Whilst I will make an order that seeks he does so, it is a matter entirely for him as to whether he will do that.

14. The second matter relates to the proposed amendment to proposed order in paragraph 6(d).  It seems to me that the order may leave insufficient time for a consideration of any difficulty that may arise in terms of the child’s handover to the mother.  I therefore do not propose to fall in with the order that the mother seeks in relation to 6(d) but, rather, that I will give the parties the ability to reach agreement as to what time, if any, the child will spend with the father in that period.  That seems to better reflect the circumstances rather than to leave a problem, if one is to occur, namely, a difficulty with the child being returned to the mother in time for a departure later than 19 June 2018.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 28 May 2018.

Associate: 

Date:  30 May 2018