VR & RR
[2002] FamCA 320
•15 May 2002
[2002] FamCA 320
FAMILY LAW ACT 1975
IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA Appeal No EA 117 of 2001
AT SYDNEY File No SY 3160 of 2001
BETWEEN:
VR
Appellant Husband
- and -
RR
Respondent Wife
REASONS FOR JUDGMENT OF THE FULL COURT
CORAM: KAY, COLEMAN & WARNICK JJ
DATE OF HEARING: 15 April 2002
DATE OF JUDGMENT: 15 May 2002
APPEARANCES: Mr Grieve, one of Her Majesty’s Counsel, with Mr Hodgson of Counsel, instructed by, Broun Abrahams, Lawyers, DX 11551, Sydney Downtown, appeared on behalf of the Appellant Husband.
Mr Brereton of Senior Counsel, instructed by Barkus Edwards Doolan, Lawyers, DX 11561, Sydney Downtown, appeared on behalf of the Respondent Wife.
VR v RR
EA 117 of 2001
Coram: Kay, Coleman & Warnick JJ
Date of hearing: 15 April 2002
Date of judgment: 15 May 2002
CHILDREN – Parenting orders – conditions – whether proper to make order under section 65E of the Family Law Act restricting a parent without evidence of detriment to child’s welfare
[NB – This a shortened version of the full judgment delivered to the parties – it contains only material necessary to deal with the more important issues raised in the proceedings]
The parties were married and lived in the UK. After separation the mother returned to Australia with the children of the marriage.
Before the mother left the UK consent orders were made in the Family Division of the County Court in the UK providing for
the children to reside with the mother; and
the father to have regular contact for one half of the children’s school holidays, with no more than 2 trips per annum requiring a one-way journey of more than 13 hours.
Disputes arose over the frequency and duration of contact. The father wanted to increase his holiday time with the children. The mother wanted to restrict him to one trip to the UK, one trip within 8 hours of Sydney and generous contact within Australia/NZ. She argued that the children suffered badly from jet lag. She also argued that the father’s trips to France and Switzerland gave the children a false sense of values.
Steele J ordered (inter alia)
That the father be allowed one trip to the UK each year (21 days duration),
one school holiday contact period may occur within an 8-hour flight time radius of Sydney.
Other vacation contact is to be exercised in either Australia or New Zealand.
The father appealed, seeking to have contact with the children
(a) for 28 days (plus travelling time) during the children’s Christmas holiday;
(b) for 20 days (plus travelling time) during the children’s mid-year holiday; and
(c) for one half of the aggregate of all other school holiday periods;
and seeking to exercise contact overseas during two of those occasions each year without any geographic or travelling time limitations, and anywhere within a 13 hour flight from Sydney on all other occasions.
Held: in allowing the appeal in part and re-exercising discretion
(per Kay, Coleman & Warnick JJ)
Whilst the word “proper” in section 65D(1) connotes a very wide area of discretion, it is clear from the legislative scheme that any intervention by the Court in the due performance of an aspect of parental responsibility, that seeks to interfere with or diminish the responsibility of either parent to care for the child in the manner that parent deems appropriate, should be made only where the Court is of the view that the welfare of the child will be clearly advanced by that order being made.
It is not the role of the Court to identify and then seek to determine every matter that is in issue between two estranged parents who cannot agree on the way their child is to be raised. The Court should only interfere in the way in which a parent proposes to raise a child to the extent that the welfare of the child requires interference.
The quantum of contact ordered by his Honour was appropriate and within discretion. However there was no adequate reason shown as to why it was appropriate to limit the European trip to the UK, nor why an 8 hour flight limit was any more necessary than the previously agreed 13 hour limit. In the absence of appropriate evidence it was not proper for a court to so restrict the freedom of the contact parent.
APPEAL ALLOWED IN PART
NO ORDER AS TO COSTS
REPORTABLE
Introduction
This is the husband’s appeal against contact orders made by Steele J on 27 November 2001. By his appeal the husband seeks to have contact with the children of the marriage:
(d) for 28 days (plus travelling time) during the children’s Christmas holiday;
(e) for 20 days (plus travelling time) during the children’s mid-year holiday; and
(f) for one half of the aggregate of all other school holiday periods.
He seeks to be permitted to exercise contact overseas during two of those occasions each year without any geographic or travelling time limitations, and anywhere within a 13 hour flight from Sydney on all other occasions.
The orders he appeals against provide in summary:
· That he have vacation contact for an aggregate of one half of the total duration of the children’s school holidays in any one calendar year, no one period of contact to be longer than 21 days (plus 2 days travelling time during Christmas if the children go to the United Kingdom).
· In addition, one school holiday contact period may occur within an 8 hour flight time radius of Sydney.
· Other vacation contact is to be exercised in either Australia or New Zealand.
Background
The wife was born in and raised in Australia. The husband was born in and raised in England. After their marriage they resided in Australia for some years and then England where they lived together until they separated. They have young children.
After the parties separated the wife made it known that she wished to move to Australia with the children. Orders were made in England allowing the wife and children to live in Australia and providing for the husband to have contact at least four times per year provided that no more than two trips per year required the children to travel more than 13 hours from Australia.
In March 2001 the husband commenced proceedings in England seeking changes to the English orders. In so far as is relevant to this appeal, the husband sought:
“The long Christmas holiday shall be shared 50/50”
There were several other issues in dispute between the parties canvassed by the husband’s fresh application.
The wife applied to the Family Court of Australia at Sydney seeking orders for residence of the children and that she be granted the sole responsibility for their day to day and long term care, welfare and development. She sought orders providing for contact by the husband for an aggregate of half of the children’s school holidays and when the husband was in Australia for alternate weekend plus mid-week contact. She also sought a restraint upon the husband prosecuting the proceedings in the United Kingdom.
In his Response to that application the husband in so far as germane to the appeal before us, sought that the children have contact with the husband in England, Australia or elsewhere:
“(a)For one half of the Christmas school holiday period, the period including Christmas Day to be alternated. The children to be with the father at Christmas 2001.
(b)During the June/July holidays for a minimum period of 21 days and nights with the father plus two days travelling time.
(c)For one half of the other two school holidays…”
and that
“30.The children will not be required to travel to see their father for more than fifteen hours in a single trip wheresoever that may be on more than two occasions per annum.”
The judgment
In so far as is relevant to this appeal, after his Honour set out a short history of the marriage, he identified as the law to be applied the provisions of ss 60B, 65D, 65E and 68F of the Family Law Act 1975.
After setting out further matters as to the background of the dispute and making sundry findings not pertinent to this appeal, his Honour turned to s 68F(2) matters, finding that each of the parents loved the children and that the love was returned. He stated:
“…it is important not to lose sight of the primary purpose of contact, which is to ensure that there is a worthwhile relationship between the children and the contact parent.”
He observed:
“The wife loves the children and is devoted to protecting them from the difficulties which may arise in their development…”
Two of the major issues that his Honour had to deal with were identified by his Honour as “whether there should be two UK trips per annum and whether there should be 12 day blocks of mid-term contact in Australia”. He said:
“The children are still young and I do not think the effect of separation from their mother should be underestimated.
If the United Kingdom trips are reduced to one per annum, that will reduce the opportunities for the children to have contact with their paternal grandparents, with whom they have a very good relationship and who, I am sure, love them very much. If, however, the situation is changed so that either the husband or his parents do the travelling instead of the children, then that would reduce the impact of travel upon the children and alleviate the concerns which the wife has expressed about excessive travel. The husband has sought orders that would permit his parents to exercise his contact, if he is unable to do so. If that were applied to holiday contact in Australia, then it would enable the children to see as much of the husband and/or his parents as they were able to arrange, given the travelling required of them.”
His Honour also noted:
“(h)The attitude to the child and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
The parents are both responsible. I think, however, that the husband sees the dispute more as one in which the priority is justice for himself, rather than orders which are in the children’s best interests. He sees the children’s best interests as being promoted by spending as much time as possible with him. The wife is the resident parent and is concerned to protect and guard the children from some of the excesses to which they may be exposed and to provide a settled, ordered environment for them.”
Under the heading “The Resolution of Issues” Steele J identified three principle questions to be determined, namely:
“A.The number of U.K. trips to be permitted during school holiday time each year.
B.The question of whether the husband should be permitted to have mid-term contact in Australia and, if so, the extent of such contact.
C.Whether the wife should have sole responsibility for the long term care, welfare and development of the children.”
For the purposes of this appeal only the issues raised in respect of the item identified as “A… UK trips…” are relevant.
His Honour said (emphasis added):
“82)I am satisfied that the U.K. trips and the extent of those trips are quite unsettling and tiring for the children. They are still relatively young and I do not think the effect of separation from their mother, should be underrated.
83)The history of the contact which the husband has had over the last couple of years, demonstrates increases in the frequency of plane travel with which the children have been involved. If the husband, or his parents, were able to travel to Australia, then they could see quite a lot of the children, but it would have the effect of limiting the travel to be undertaken by the children, which I think is, in the end result, desirable. … It may be that the husband will see these matters as impacting unfairly upon his freedom to do what he wants but the most important issue is what is in the best interests of the children, having regard to the statutory recognition of the fact that the children have a right to a worthwhile relationship with the husband.
84)…
85)Holidays in Australia will enable the children to have opportunities that heretofore have been limited to spend time and develop their relationships with their school friends. This is not an unimportant part in their development.
86)Accordingly, I have come to the view that the husband should be permitted to take the children on only one U.K. trip each year and, as submitted by the wife, his other periods of contact, should take place in Australia or New Zealand, with one other trip per year limited to one-way travel time of no more than 8 hours.
87)I understand that the husband has in the U.K. been able to conduct his business by spending some time working when the children are on contact and living at his parents’ place. It seems to me, however, that if he is to be absent from his normal workplace whether he be in Sydney or [England], given the advantages of e-mails, facsimile machines and telephones, it is only the time difference which should create any real difficulty in conducting his business activities from Sydney. Of course, for a busy man, the travel may be demanding, but I think it is preferable, at this stage, that the demands of the travel be placed upon him, or if they wish, his parents, rather than on the children.”
The Appeal
The live issues thus being argued before us were:
whether it was appropriate for the trial Judge to have limited the husband’s major trips to the United Kingdom/Europe to one trip per year rather than two as provided for by the English orders,
whether on such trips the husband should have been restricted to the confines of the United Kingdom rather than be unrestricted as to where he should take the children, and
whether in respect of the other periods of travel it was appropriate to limit the husband to an 8 hour travelling radius from Sydney when in particular the husband was thereby precluded from taking the children to Koh Samui, Thailand during that holiday period.
One major trip or two?
Notwithstanding that the English orders provided for the husband to be able to have contact at least twice each year in circumstances that required the children to travel for more than 13 hours, the wife sought orders limiting such travel to one trip per year. She asserted that the duration and frequency of the travel had a deleterious effect on the children.
The wife and S, a nanny employed by her, gave evidence as to the children’s condition after their trips. The wife complained that the children were clingy, tired, jetlagged and unsettled. She spoke of the children coming back with colds and on at least one trip one child returned with worms.
The nanny, who impressed the trial Judge as “a sensible, competent person, who was an honest witness” gave evidence that it took the children seven to ten days after returning from a trip to the United Kingdom to get back into their routine and to be settled. There were behavioural problems with the children, who put on tantrums and competed for their mother’s attention.
Ultimately, his Honour reached a conclusion that there should be some limits placed on the places where contact should take place having regard to:
· the age of the children;
· the likely effects of separation from their mother; and
· the evidence that the trips had been unsettling and tiring for the children.
Section 65D(1) of the Family Law Act provides that:
“In proceedings for a parenting order, the court may…make such parenting order as it thinks proper.”
Section 65E provides:
“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
By operation of s 61C(1), each of the parents of a child who is not 18 has parental responsibility for the child. Parental responsibility is defined in s 61B as meaning:
“…all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”
Section 61C(3) provides that:
“Subsection (1) has effect subject to any order of a court for the time being in force…”
Section 61D(1) provides:
“A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.”
Subsection (2) provides:
“A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):
(a)expressly provided for in the order; or
(b)necessary to give effect to the order.”
Section 64B(2) provides:
“A parenting order may deal with…
(a)the person or persons with whom a child is to live;
(b)contact between a child and another person or other persons;
(c)maintenance of a child
(d)any other aspect of parental responsibility for a child.”
The overall framework of the legislation can be seen to provide that both parents have parental responsibility for the child but that a court may take away or diminish an aspect of parental responsibility if it is “proper” to do so.
Whilst the word “proper” connotes a very wide area of discretion, in our view it is clear from the legislative scheme that any intervention by the Court in the due performance of an aspect of parental responsibility, that seeks to interfere with or diminish the responsibility of either parent to care for the child in the manner that parent deems appropriate, should be made only where the Court is of the view that the welfare of the child will be clearly advanced by that order being made.
In our view it is not the role of the Court to identify and then seek to determine every matter that is in issue between two estranged parents who cannot agree on the way their child is to be raised. The Court should only interfere in the way in which a parent proposes to raise a child to the extent that the welfare of the child requires interference.
The concept of parental autonomy has frequently been discussed in the context of limiting the State’s interference with the way a parent raises a child. In the United States of America in Re Phillip B 92 Cal App 3d 796, Caldecott J said:
"Parental autonomy is not ... absolute. The state is the guardian of society's basic values. Under the doctrine of parens patriae the state has a right indeed, a duty, to protect children. State officials may interfere in family matters to safeguard the child's health, educational development and emotional well-being.
One of the most basic values protected by the state is the sanctity of human life. Where parents fail to provide their children with adequate medical care, the state is justified to intervene. However, since the state should usually defer to the wishes of the parents, it has a serious burden of justification before abridging parental autonomy by substituting its judgment for that of the parents."
In AMS v AIF (1999) 199 CLR 160; FLC 92-852; 24 Fam LR 756 the High Court examined at length the circumstances in which the Court could make orders in a case involving the issue of relocation within Australia. Whilst the case was ultimately determined on an issue as to whether or not the trial Judge had placed an unnecessary onus upon the wife to demonstrate whether there existed “compelling reasons” to justify her wanting to move from Perth to the Northern Territory, in the course of setting out the various considerations that would be appropriately taken into account in such a case, Gaudron J, when discussing the scope of the Western Australian statute that enabled the courts of that State to make orders concerning the welfare of ex-nuptial children said at CLR 189; FLC 83,031; Fam LR 777 (endnotes omitted, emphasis added):
“85. It may be taken that the jurisdiction conferred by s 27 (5) of the 1975 WA Act "to make an order containing a provision for the ... welfare of, a child" is a jurisdiction similar to the parens patriae jurisdiction exercised by the Court of Chancery "without the formal incidents of one of the aspects of that jurisdiction, [namely] the jurisdiction to make a child a ward of court". It has been said that the parens patriae jurisdiction is "an unrestricted jurisdiction to do whatever is considered necessary for the welfare of a [child]" and that "[i]ts limits ... have not, and cannot, be defined". However, the jurisdiction is not in principle supervisory. Rather, it is a jurisdiction which, in general terms, is exercised when there is some risk to a child's welfare.”
Kirby J said at CLR 208; FLC 86,041; Fam LR 792 (endnotes omitted, emphasis added):
“145. …One of the objects of modern family law statutes (including the Family Law Act 1975 (Cth) and the Family Court Act 1975 (WA)) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare of best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents.”
In Chamberlain v De La Mare [1983] 4 FLR 434 Ormrod LJ, citing his Lordship’s own judgment in the earlier unreported appeal case of Moodey v Field 13 February 1981, in a relocation case said at page 443:
“…in ordinary sensible human terms the court should not do something which is, prima facie, unreasonable unless there is some compelling reason to the contrary. That I believe to be the correct approach.”
In her book Mom’s House, Dad’s House – Making two homes for your child, 2nd ed, Simon & Schuster, New York, 1997 at page 11, the author Isolina Ricci postulates a code of conduct for parents who have separated. Among the items she identifies as appropriate behaviour is:
“Each parent has the right to his or her own private life and territory and to raise the children without unreasonable interference from the other parent.”
In our view there is much to be said for extending that parental autonomy principle to disputes between separated parents. We think it is a sound principle that the Court, when determining issues of parental responsibility, should avoid unnecessary interference with the powers delegated to each of the parents.
In this case importantly, by his introductory orders the trial Judge ordered that the husband have sole responsibility for the day-to-day care, welfare and development of the children whilst the children were having contact with him. Normally we would perceive that the grant of such power would leave to the husband all of the decisions concerning where the children go during such a contact period and what activities they undertake whilst with him. This is, of course, subject to the caveat that the Court in an appropriate circumstance could place limits upon that contact if it was of the view that those limits were appropriate for the protection of the welfare of the children.
In this case there was clear evidence that the amount of travel that the children were having to undergo in order to have contact with their father, being two trips per year to the other side of the Earth, was having a deleterious effect upon them. In those circumstances, it was in our view reasonably open to the trial Judge to determine that the deleterious effects that the travel was having upon the children outweighed in his Honour’s mind the advantages to the children of being able to take contact with their father in and around his home base in England, including visits with their paternal grandparents. It was an issue of serious magnitude, sufficient for his Honour to determine it as between the parties.
It was appropriate to recognise that the parties had in place the English consent orders which enabled the husband to have contact twice a year in and around England, but at the same time those orders were not so set in cement that they could not be changed if the best interests of the children required it.
In the circumstances, on the evidence before the trial Judge the conclusion that there should be a reduction in travel to Europe was clearly open to the trial Judge. Further it was clearly open to the trial Judge to restrict the balance of the year’s travel to one substantial trip away from Australia/New Zealand with the rest to be taken within either Australia or New Zealand. This is not a conclusion that we could, as an appellate court, properly interfere with. It is clearly not plainly unjust. Its basis has been clearly and rationally explained by the trial Judge. It accords with much of the evidence that was before the trial Judge. No error of principle has been demonstrated which would make it appropriate to interfere with that portion of his Honour’s exercise of discretion.
United Kingdom or Europe?
The issue relating to limiting the contact to the United Kingdom itself, however, fits in a different category. Seemingly, by reason of the matters explained hereunder, the trial Judge did not intend to decide the issue. Yet, the effect of his orders is to make a decision about the issue in circumstances when we think that the decision amounts to the type of “unnecessary interference” that we have just identified.
There was little evidence about why there should be any limit placed on how the children spend time with their father. The gravamen of the mother’s complaint was that she was concerned that the children
“live settled and ordered lives which provide them with a ‘grounded’ approach to life and the world. I am most anxious to avoid the possibility that they will become ‘jet set’ children.”
When asked to expand in cross-examination on the last matter, the following exchange took place between Mr Hodgson on behalf of the husband and the wife:
“MR HODGSON: …I take it you are seeking to achieve a situation of what you describe as a grounded approach to life to avoid the possibility of them becoming jet-set children?---Yes.
What do you mean by that?---Unaware of who they are, of their roots, not sure of – not knowing themselves well enough. Just expecting to pop off to this one or that place or somewhere else. Always looking for sort of excitement somewhere else.
You see that against their interests, the excitement of going somewhere and sharing time with their father either with his family overseas…or just a holiday in Thailand or wherever. You see that that is – you say that is adverse to their interests, do you?---I think extensive excessive travel is.”
In seeking to clarify the evidence, particularly in respect of whether the mother thought the children should be allowed to travel within Australia but not go to New Zealand his Honour said:
“I think the point that was perhaps being made but not stated was that perhaps your objection therefore is not to so much to the length of travel but to the children being involved in overseas travel?--- Yes.”
Then his Honour summed up his perception of the witness’ evidence as follows at:
“I understand that the position that this lady puts is that the children have to travel to go to England to see their father. She acknowledges that. I gather that she would prefer that when they got to the UK they didn’t spend two days in London and then fly off to Switzerland and then come back to London and then perhaps go somewhere else and that when she has them in Australia she would prefer that they didn’t – she didn’t take them flying off to Queensland and so on…”
At the point those comments are made the wife’s very brief re-examination had just begun. Mr Brereton SC on behalf of the wife did not take up the topic so defined by his Honour any further with the wife.
We have not been taken to any part of the transcript where the reasons why the husband saw it as appropriate or otherwise to take the children with him to either Switzerland or the south of France are set out. Nothing was shown or put as to why it would be either advantageous or detrimental to the children.
After a hearing that lasted some six days, Steele J delivered judgment on 11 October 2001. At the conclusion of his judgment his Honour set out a series of proposed orders and then stated:
“The parties are directed to bring in Short Minutes of Order to give effect to the findings set out herein, or a date to be fixed. If the parties cannot agree, then each party shall prepare separate ‘Minutes of Proposed Orders’ and submit them to my Associate no later than 4.00 p.m. on Tuesday, 23 October 2001. The matter will be listed before me for mention only Thursday, 25 October 2001 at 9.30 a.m.”
The matter was mentioned before his Honour on 25 October 2001 where discussion took place about the Reasons for Judgment and the proposed competing views about minutes. Each party submitted competing minutes.
On 25 October 20 during discussion about the precise form of the orders, the following exchange took place between counsel and the Bench (emphasis added):
“MR HODGSON: Your Honour, I mean, one other little thing which I might as well float you on now is also in relation to the definition of contact in the UK, whether or not that includes Europe or is limited to the UK. Now, that is something that – I mean, I know there is a thing about the jet set children or whatever but - - -
HIS HONOUR: Well, it is the UK. The United Kingdom is the United Kingdom. No-one has ever sought to define the United Kingdom…
MR HODGSON: Yes. But, I mean, I suppose the issue is should the husband be limited to being within the United Kingdom meaning that he could go from London to the top of Scotland which might take 3 or 4 hours to get there but he can’t take the children across to France on the Channel. I mean, that is the sort of example.
HIS HONOUR: Well, I mean, it is an hour to Switzerland or somewhere.
MR HODGSON: Yes.
HIS HONOUR: But part of this reasoning is for the children to spend time with him, with his parents, he says is an important thing, and to get the advantage of his English heritage.
MR HODGSON: Yes, your Honour.
HIS HONOUR: Now, if he is going to take them to England and then the next day they hop on a plane and go to Switzerland, then the week after that they go to France, they are not going to be getting much of his English heritage. A lot of information about Switzerland, a lot about France, but nothing about England. That is what it was all about.
MR HODGSON: Yes.
HIS HONOUR: Now, there was nothing sought to address me to suggest that UK should mean Europe and, clearly, if that is the case, you would have them traipsing around everywhere doing, you know – spending 14 or 16 days of holidays and 5 of them in airports. I mean, it really could be that.
MR HODGSON: Yes.
HIS HONOUR: I mean, to an extent, Mr Hodgson, I don’t have any scope to expand upon issues now.
MR HODGSON: Yes, I know, I accept that. I accept that, your Honour.
HIS HONOUR: Had it been raised with me, I frankly would have tried to accommodate the thing. I would have either made a finding one way or another or, you know, limited by may be – I would have said, yes, but one trip of no more than an hour and a half a year or something. I don’t know what I would have done. But I just didn’t address it.
MR HODGSON: Yes. Well, it may well be, your Honour, these are things that, as with the other issue, my friend and I have got to address and now that we have come to the crunch that the parties have got to attempt to come to some resolution themselves.”
The matter was again mentioned on 27 November 2001 when his Honour stated:
“…In broad terms, I propose to make orders in accordance with the revised short minutes of orders submitted on behalf of the wife, but there are a couple of things that I want to raise…”
His Honour then sought some clarification about Christmas and Boxing Day contact and in the course of that discussion a debate arose as to whether or not the calculation of each year’s school holiday should be made on a calendar year basis or a school year basis. The husband thought it important to calculate it on a school year basis so that in the years that he was entitled to have the children with him at Christmas he could commence their holidays with him in England prior to the Christmas break rather than have to just fly to Australia for two days at Christmas time, that being the end of his annual entitlement to contact.
His Honour responded:
“Well, I accept that it is, but it was common ground, the wife hasn’t argued for the reason that it was not an issue and you say well it wasn’t an issue but it’s open to the husband, in much the same way as you now want to argue that UK should include Europe.
MR HODGSON: Yes.
HIS HONOUR: It was never argued because you said, ‘Well we want two trips to the UK a year’ and it may be that if it had been argued the other side would have said, ‘Well we want some restrictions on what a European trip is and we don’t want a trip to a (sic) London and then Switzerland and then France and then wherever’, these are all matters which could have been – I mean you have to accept that there’s always a prospect that your ultimate claim won’t be met and if that’s the case then you have to make some provision for some alternative thing.”
It seems clear from the discussion on both 25 October 2001 and 27 November 2001 that, prior to finally making his orders in this case, the trial Judge had clearly indicated that he was not deciding the issue as to whether or not the husband’s long overseas holiday would entitle him to take the children not only to England or other parts of the United Kingdom, but also to Europe.
It is clear that the issue had been raised by the parties although it is not precisely clear as to the manner in which each of them sought to have it resolved. The parties’ agreed statement of issues handed to the trial Judge added to this confusion when it said (emphasis added):
“The Issues are:
3.1whether holiday contact should be (as the wife proposes) half of the school holidays each year, limited to only one European vacation, or whether (as the husband proposes) half of the long vacation, 28 days + 2 days travelling time in the winter vacation in Europe, 21 days plus 2 days travelling time in the mid year vacation in Europe and half of the other vacations [Wife’s order 3.1; Husband’s order 20];
…
3.6whether overseas contact should be limited (as the wife proposes) to once a year in England and once within an eight hour flight from Sydney, or whether (as the husband proposes) it should be permitted anywhere in the world up to twice per annum and anywhere within a 15 hour flight from Sydney on all other occasions [Husband’s order 30; Wife’s order 7];”
Counsel for both parties informed us that it is understood by the parties that the effect of order 3.5(a) of his Honour’s orders is that the long vacation taken by the husband is to take place only in the United Kingdom and not elsewhere.
The confusion is further compounded by the wording of grounds of appeal 4 and 5, by the free use of “United Kingdom” and “Europe” as sometimes interchangeable and sometimes clearly not.
The restriction upon the husband to the taking of contact only within the United Kingdom effectively decides the issue that his Honour indicated that he was not actually deciding. In those circumstances, it cannot be said that his Honour has effectively exercised any discretion in relation to an issue that was clearly being agitated by the parties. Our option in the circumstances is to either remit the matter to his Honour or another judge at first instance for determination, or to decide it ourselves on the material that is before the Court.
Consistent with the view that a retrial of issues is preferably avoided wherever possible, given the nature of the particular issue and the manner in which each party has sought to address it in the material that was before the trial Judge and before us, we feel that we can appropriately determine the issue without the necessity of a retrial.
Absent evidence that the welfare of the children requires the imposition of some restriction in the way that the husband chooses to parent his children when they are with him we see no reason to place any further limitation upon the husband than that imposed by limiting the duration of the trips he may make with the children each year. We see no reason to restrict him from taking the children to continental Europe if he chooses to do so. Whilst we are sympathetic to the wife’s desire to shield the children from what she sees as possible harm arising from their parents’ ability to afford extensive and expensive holidays, her value system is not inherently more important to the children than that of their father. Absent clear evidence that the two systems cannot function in tandem, the Court ought not buy into these lifestyle debates between parents unless the welfare of the children demands that one system be chosen over and above the other. No such evidence is present in this case.
In any event an order that enables the children to travel to Belfast but not Dublin, to the far north of Scotland but not to Calais, makes no sense.
The 8 hour limit
The judgment offers no explanation as to why the trial Judge chose to impose an 8-hour limit rather than retain the previously agreed 13-hour limit. There was no evidence at all before his Honour of the likely effects upon the children of having to travel up to 5 extra hours by air on one trip per year. The wife’s evidence concerning the children’s difficulties with travel was confined to their experiences travelling to Europe.
The absence of any explanation as to why the matter was resolved in the wife’s favour amounts to an appealable error (see Bennett and Bennett (1991) FLC 92-191). We are unable to ascertain the reasoning upon which this aspect of the decision is based. Apart from 8 hours being the wife’s preferred position, there was nothing in the evidence to support a change from the parties’ previously agreed position as reflected in the English orders. The Family Law Act seeks to encourage parents to agree about the future parenting of their children (see for example ss 60B(2)(d) and 63B). Where the parties have reached such agreement and formally incorporated it in court orders or a formal agreement, then a Judge should be slow to depart from the parties’ agreement unless satisfied that the welfare of the child requires such a departure. If that conclusion is reached the Judge is required to explain why it is appropriate to move away from the agreed arrangements. That was not done in this case, nor do we see any basis for an 8-hour limit being imposed in preference to the agreed 13-hour limit.
Summary of conclusions
● Contact periods should be calculated by reference to the school year rather than the calendar year.
· The appeal against reducing the children’s trips to Europe to once per year is dismissed.
· The restriction on limiting the husband’s long overseas visit to within the United Kingdom is removed.
· The appeal against reducing the children’s other trips to only one trip per year outside of Australia/New Zealand is dismissed
· The restriction to limiting the other long contact period to an 8-hour travel time in preference to a 13-hour travel time is removed.
Costs
Whilst each counsel submitted that costs should follow the event, this appeal has been only partly successful. In those circumstances we think it proper that each party bear their own costs.
I certify that the preceding
64 Paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.
Elizabeth Hore
Associate
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