Webber and Jones and Ors

[2007] FamCA 1191

FAMILY COURT OF AUSTRALIA

WEBBER & JONES AND ORS [2007] FamCA 1191

FAMILY LAW – CHILDREN – Application for mother to take child to France for a short period –Whether mother would return child to Australia – Whether security necessary for the child’s return – Where mother had strong ties with Australia – Where mother is the primary caregiver – Where child aged two years – Where France is a Hague Convention country – Application granted - No security ordered - Compensatory time ordered for child to spend with grandparents

Family Law Act 1975 (Cth)

Line & Line (1997) FLC 92-729

APPLICANT: Ms Webber

FIRST RESPONDENT: Mr Jones

SECOND RESPONDENT: Mrs Jones Snr

THIRD RESPONDENT: Mr Jones Snr

FILE NUMBER: SYC 3977 of 2007

DATE DELIVERED: 5 September 2007

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Boland J

HEARING DATE: 5 September 2007

REPRESENTATION

ADVOCATE FOR THE APPLICANT: Ms Webber in Person

ADVOCATE FOR THE RESPONDENT: Mr Jones via telephone linkup

SOLICITOR FOR THE SECOND & THIRD RESPONDENT: Ms Laurence

Orders

1. That the mother be permitted to remove the child born … July 2005 from the Commonwealth of Australia from 9 September 2007 to 2 October 2007 for the purpose of a holiday in France.

2. On provision to the Australian Federal Police of a sealed copy of these orders, the child shall be removed from the Passport Watch list for the period 7 September 2007 to 4 October 2007, whereafter the child’s name shall be re-instated on the Passport Watch list.

3. That Order 1 of the orders made 10 April 2006 in the Local Court Family Matters in proceedings between the father and the mother be suspended during the mother’s holiday in France with the child.

4. That Order 1 of the orders made 4 September 2007 between the mother and the paternal grandparents be suspended during the mother’s holiday in France with the child.

5. The paternal grandparents’ time to be spent with the child pursuant to the consent orders made 4 September 2007 shall resume on Saturday 6 October 2007.

6. The paternal grandparents shall spend additional time with the child for two hours between 9.00am and 11.00am on 4 October 2007.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3977 of 2007

MS WEBBER  

Applicant

And

MR JONES  

First Respondent

And

MRS JONES SNR  

Second Respondent

And

MR JONES SNR  

Third Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

1. Before me is an amended application in a case filed on 30 August 2007 by Ms Webber (“the mother”).  The mother seeks to take the child born in July 2005, from Australia to France for a period of just over three weeks.  The mother’s application is opposed by Mrs Jones Snr and Mr Jones Snr in a response to an application in a case, filed in Court today.  Mr and Mrs Jones Snr are the child’s paternal grandparents (“the paternal grandparents”).

2. The paternal grandparents are the applicants in the substantive proceedings which were commenced in this Court by an application filed on 1 June 2007.  Interim consent orders were made between the mother and the paternal grandparents on 4 September 2007.  The orders are parenting orders and in summary they provide for the paternal grandparents to spend time with the child for two hours each Tuesday and for four hours each alternate Saturday. 

3. Mr Jones (“the father”) is the child’s father.  In proceedings in the Local Court Family Matters, interim orders for contact, as it was then described before the introduction of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth), were made on 10 April 2006. The orders provide the father have contact each Tuesday and Friday for a period of eight hours and for further contact each alternate Sunday for four hours with the child. The proceedings commenced in the Local Court were transferred to this Court.

4. On 10 July 2007 the mother filed an application for final orders in this Court in which she seeks the discharge of the orders made in the Local Court and for orders that the child live with her.  On 29 August 2007 an application by the mother to have the child’s name removed from the watch list was before Steele J. On that day, his Honour, amongst other orders, consolidated the proceedings between the mother and the father and the mother and the paternal grandparents. 

5. The father did not file a formal response opposing the mother’s application today, but I permitted him to make an oral application to do so.  He did not file a sworn affidavit. I permitted the father to rely on his affidavit as a proof of evidence and he swore the truth of the contents of that proof of evidence.

Orders sought

1. The mother, in her application, seeks the following orders:-

   1.That the Child […] born […] July 2005 be permitted to travel to France between Sunday, 9 September 2007 and until 2 October 2007.

   2.That 48 hours prior to the proposed holiday in 1 above, the applicant supply to the respondents the following: 

   (i) Travel Itinerary, including addresses where [the child] will be staying.

   (ii) Telephone numbers where [the child] can be contacted.

   (iii) Copies of relevant airline tickets in relation to [the child]. 

   3.That the applicant mother shall ensure that whilst [the child] is in her care she will telephone the second and third respondents on each Tuesday and Saturday at 7.00 a.m. Paris time to facilitate telephone contact between [the child] and the second and third respondents.

   4.That the respondents pay the applicant’s costs of and incidental to this Application. 

2. In their response the paternal grandparents seek the following orders: 

   1.That orders 1, 2, 3 and 4 of the orders sought in the Amended Application in a Case served upon the Second and Third Applicants on 31 August 2007 be dismissed.

   2.In the alternate and in the event the Applicant is successful in her application then:

   (a) That [the child] born on […] July 2005 (“[the child]”) spend time with the Second and Third Applicants on the first weekend of October 2007 from Saturday morning 6 October 2007 from 8.00 a.m. to 4.00 p.m. in the evening and Sunday morning 7 October 2007 from 8.00 a.m. to 4.00 p.m. in the evening.

   (b) That the Applicant lodge a bond of $10,000 (as security for her return from France) by no later than 7 September 2007 such bond to be lodged with the solicitors for the Second and Third Respondents or such other person as the Court nominates. 

The issues in this application

1. It appears to me that the issues in this application are principally as follows:

   a)whether or not the mother will return with the child to Australia in the event the orders sought in her application are granted;

   b)whether or not security is necessary and whether it is appropriate to order the mother provide some form of security for her return, and if so, in what form; and

   c)whether or not compensatory time for the child to spend with the paternal grandparents should be ordered.

Background

1. The parties’ affidavit material contains little by way of background history.  The child was born in July 2005, so he is now aged just over 2 years old.  He has lived primarily in the care of his mother all of his life. 

2. The mother lives in N and her occupation is an accounts manager.  She has lived in her present rented accommodation for one and a half years.  That accommodation is next to the home of her mother, the maternal grandmother. 

3. The mother holds an Australian and French passport. 

4. The mother is a shareholder in a company, R Pty Ltd (“R”) which operates a business in N.  The maternal grandmother is the director of the business which has been in operation since 1985. 

5. The mother and the maternal grandmother are registered proprietors of the property at B (“the B property”).  The B property is used to grow fruit.  The B property was purchased in 2005 for $495,000.00 and is subject to a mortgage of $120,000.00 to Westpac Bank.  Mortgage payments are made by the maternal grandmother. 

6. On 13 January 2006, ex parte orders were made in the Local Court, Family Matters restraining the mother removing the child from the Commonwealth of Australia. 

7. On 6 April 2006 the contact orders, to which I have already referred, were made in the Local Court providing for contact by the father with the child.

8. In April 2007 the father moved to New York where he is currently residing.  On 30 May 2007, the paternal grandparents’ solicitors wrote to the mother and said, inter alia:

   …

   [The paternal grandfather] has advised that his son, [the father], is remaining in New York in circumstances where [sic] is attempting to establish a business there.  He will not be returning to Australia in the near future.  Accordingly, the orders made on 22 February 2006 between [the father] and your client are not workable at the present time.

   …   

9. On 10 July 2007, the mother’s former solicitors wrote to the paternal grandparents’ solicitors and in their letter said:

   We refer to the discussions before Registrar Stowe Smith in Chambers on 10 April 2007 concerning our client’s holiday to France between 9 September and 2 October 1007 [sic].  We enclose, as requested copy of [sic] Itinerary. 

   Our client and [the child] will be staying with […], our client’s sister at her home at […].  Telephone number […]. 

   We seek your client’s agreement in writing to [the child] travelling with our client as proposed, within the next 7 days, failing which we are instructed to file an Application. 

10. On 13 July 2007, the mother’s former solicitors wrote to the father and said, inter alia:

    We have received a letter dated 12 July 2007 from The Argyle Partnership, your former Lawyers. 

    We previously wrote to your lawyers on 10 July 2007 regarding the proposed holiday by our client and [the child] to France between 9 September 2007 and 2 October 2007.  A copy of this letter is enclosed, together with the proposed itinerary attached. 

    You will be aware that there are Orders in place which preclude either party from travelling overseas with [the child] without [sic] consent of the other party.  As sought in our letter we require your agreement in writing for [the child] to travel overseas between the said dates.  We note that our letter was forwarded to your former lawyers on 10 July 2007 and that they did not stop acting for you until 12 July 2007.  Accordingly should you fail to forward the agreement in writing for [the child] to travel overseas with our client within the 7 days provided in our original letter, we will, as foreshadowed be filing an Application with the Family Court.  We will also be seeking costs in relation to this Application. 

11. On 13 July 2007, the father replied to the mother’s former solicitors, saying inter alia:

    I refer to the letter from Glenda Laurence, dated 12^th July 2007, and note that pending your clients [sic] agreement to the upcoming contact arrangements for myself, I see no reason not to write back to you consenting to let [the child] visit France. (my emphasis)

    … 

12. The mother’s former solicitors wrote to the father on 20 July 2007 and they said, inter alia:

    …

    Your letter unfortunately is unclear as to whether or not you consent for [the child] to travel with our client to France, as previously detailed in our correspondence both to your former Lawyer and to yourself.  In these circumstances we request that you sign the enclosed authority and forward it back to us within the next (7) days. 

    Failing receipt of your signed authority, we are instructed to make an Application to the Court together with an application for costs.

    … 

13. Since the father’s relocation to New York, that is, during the last six months, the mother has received child support via the Child Support Agency of approximately $35.00 to $40.00 per month.  Last month she received $50.00 for one month’s child support.

Evidence in this application

1. The mother relies on her affidavit sworn on 30 August 2007, her sworn oral evidence before me, and the sworn oral evidence of the maternal grandmother given by telephone today.  The paternal grandparents rely on the affidavit of the paternal grandmother sworn on 3 September 2007.  The father relies on his proof of evidence, the truth of which he swore before me today. 

2. In summary the mother says: 

   (a) she wishes to go to France for a holiday as she has not been to France since 2004;

   (b) she wishes to see her half sister who lives in [France];

   (c) she wishes to personally execute a contract or documents necessary to effect the sale of a property inherited by her which is located in the [south west of France];

   (d) she has purchased return air tickets with Ethid Airways;

   (e) that she has strong ties with Australia, namely, the maternal grandmother and her brother live in close proximity to her, she is a shareholder in [R Pty Ltd], and she has a 50 per cent interest in the [B] property. 

3. The mother made no proposals for provision of any security, but sought that I make orders for telephone contact to the paternal grandparents during her time in France. 

4. It is submitted on behalf of the paternal grandparents that there is a high level of conflict between the parties over contact arrangements for the child, and that the mother has not honoured an agreement reached in mediation for them to have contact with the child. I note that the affidavit evidence in that respect related to events prior to the consent orders entered into on 4 September 2007. 

5. The father swore that the maternal grandmother said to him, “this is not my country.  When I sell this business I intend to move back to France.”  He says the mother works in the business and is financially dependent on it.  He further submits that the mother has strong ties to France. In support of that submission, he says when she was aged nine years the maternal grandmother sent her to France for a year.  He also swears to difficulties in arrangement contact, particularly when he returned to Sydney in August 2007. He has a filed a contravention application which has not yet been heard by the Court. 

6. The maternal grandmother gave evidence that the business was not for sale and that she had no present intention to sell the business conducted by R Pty Ltd.  She gave evidence of recent employment of a French employee, one of several employees of the business.  The French employee was employed to replace a previous employee who had worked in the business for 10 years, but departed to Queensland.  She gave evidence that the new employee was not engaged in a management role in the business.  I have received into evidence a fax from Qantas acknowledging increased ordering by Qantas for products of the business.

Relevant law

1. I now considered the relevant law which I must apply in dealing with this application.  That law is succinctly set out in the judgment of the Full Court of this Court in Line & Line (1997) FLC 92-729 and in particular at 83846, at paras.4.49 to 4.52 in the following terms:

   4.49               The next matter is obviously the degree of risk that the departing parent, once permitted to leave Australia, will, despite assurances to the contrary, choose not to return.  In assessing that degree of risk, obvious considerations are the existence (or otherwise) of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here), the existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues) and the existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there). 

   4.50               We think it will also be relevant, in exercising this discretion, to consider whether the country to which the departing parent intends to travel with the children is or is not a signatory to the Convention on the Civil Aspects of International Child Abduction signed at the Hague on the 25 October, 1980 (“the Convention”).  However, in considering and deciding what weight to give to this factor, the Court would have to bear in mind that, even if the designated destination is a convention country, once the departing parent has left Australia there may be little to prevent him or her deviating from that designated destination to another destination in a non-convention country or, after going to the designated destination, from then travelling on to a non-convention country. 

   4.51               Finally, we think that a relevant consideration in the exercise of this discretion is the financial circumstances of both parties, and in that context the relative hardship which the departing parent would suffer by the imposition of security at a particular level as compared with the hardship which the non-departing parent would suffer if the security were fixed at a lower level.  In each case, questions of hardship to the children flowing from any hardship experienced by the relevant parent would also come into consideration. 

   4.52               In this case, her Honour clearly came to the conclusion that the wife should be required to provide some security for the return of the children, and that conclusion is not the subject of any contest on this appeal.  However, her Honour gave no reasons for her conclusion that the appropriate quantum of that security was the equivalent of one return economy class adult air fare between the United States and Australia, and not more than $3,000.  We therefore do not know what matters her Honour took into account in her exercise of that discretion.  In the absence of adequate reasons for that exercise of discretion we may more readily conclude that it in some way miscarried.

Discussion

1. It is obvious from Annexure G to the father’s proof of evidence that the order placing the child on the airport watch list was, at least initially, made ex parte. 

2. The evidence before me today discloses that the mother gave appropriate notice of her proposed trip and sought consent of both the father and the paternal grandparents to her holiday in France with the child. On my reading of the father’s reply to the mother’s solicitors, he did not object to the mother’s proposed travel to France if she was prepared to agree with the regime he proposed to spend time with the child when he is in Australia.

3. The evidence of the mother’s connections to France must be considered.  I accept she has a French passport, that she presently owns property in France which she proposes to sell, and that her half sibling with whom she has developed a relationship with lives in France.  I discount the evidence that the mother spent a year in France when she was aged 9 years as I do not find that has any particular relevance to this application.  Whilst these connections are real, in my view, they are outweighed by the mother’s connections to Australia. 

4. The mother is a shareholder in R Pty Ltd which, on its face, is a successful business which has been operating for about 22 years and has secured a successful contact with Qantas.  She is employed in the business, as is her mother and her brother. She lives in close proximity, albeit in rented accommodation, to her mother.  With her mother, she owns real property in B.  I find the mother has real and substantial connections to Australia. 

5. The mother has purchased return airline tickets which were in evidence before me. She proposes to go to France, which country is a signatory to the Convention on the Civil Aspects of International Child Abduction signed at the Hague on 25 October 1980 (“the Hague Convention”).  Her reasons for holidaying in France are believable and plausible. 

1. I accept that the father lives in New York and does not, by reason of that fact alone, have the time with the child which is ideal for establishing a close attachment to a two year old. 

2. I further accept the level of child support which the father has paid for the child for the last six months is, having reference to a table such as the “Lee Expenditure Survey” of the cost of maintaining a child, totally inadequate.  This fact is referred to by me because it means the majority of the responsibility for the financial support for the child falls to the mother and that must impact on her capacity to provide for his day to day needs.  This is a relevant matter for my consideration for security, if appropriate, to be ordered.

3. I also place significant weight on the fact the mother has been the child’s primary caregiver since birth.  I accept to be separated from her for three weeks of her proposed trip, would not be in his best interests. 

4. On balance, I am satisfied the mother’s reasons for travel are genuine, and that she should be permitted to take the child to France for the specified period. 

5. I turn then to consider the question of security.  The mother offers no security for her return, other than the fact that she owns the shares in R Pty Ltd and has an interest in the B property. 

6. I accept the mother cannot deposit with the paternal grandparents’ solicitors as security the title deeds to the B property as they would be held by the mortgagee. 

7. I do not doubt the mother’s bona fides and her sworn evidence that she will return to Australia, and although established authority would suggest it is prudent to provide for some form of security to be held pending return, I do not propose to do so in this case. 

8. The reasons I do not do so are that I do not accept that the father’s fear that the mother will not return from France is genuine.  That is clear from the terms of Exhibit G of the paternal grandparents’ affidavit.  Secondly, there is evidence before me of paid return tickets.  Thirdly, the mother is proposing to go to a convention country, and in the event she did not return the child, as ordered, the father could immediately bring an application pursuant to The Hague Convention for her return.  Finally, I have regard to the low level of child support and the financial impact and responsibility that the mother has presently for the child which affects her ability to provide financial security.

9. The next matter that I turn to is the question of compensatory or make up contact to the paternal grandparents.  The mother will be away for a period of three weeks and two days.  I find that there should be some compensatory contact, but not as proposed by the paternal grandparents.  I propose that that compensatory contact should be for a period on the Thursday following the mother’s return and being for a period of two hours on that day and contact thereafter to resume as provided in the consent orders.  I am satisfied, having regard to the child’s age, this arrangement is in his best interests.

10. Finally, I do not propose to make the order for telephone contact proposed by the mother.  I do not make that order given the child’s age.  He is only just over the age of two years.  Generally, telephone contact with two to three year olds is highly variable, and often unsatisfactory because children very frequently will not speak on the phone.  It may lead to further exacerbation of the conflict between the parties if the child does not speak on the phone, and the paternal grandparents feel that they are being denied telephone contact.  This may lead to further contravention applications which would not be in the child’s best interests or that of the parties. 

11. I am satisfied from the paternal grandparents’ material that they dearly and genuinely love their first grandchild and they understandably want to have a relationship with him.  As I indicated earlier today, the paternal grandparents and the mother are to be commended upon reaching agreement in relation to a regime for the child to spend time with them, and I would not want to put anything in place that impairs what can be one of the most meaningful relationships for a child with their extended family members.

I certify that the preceding forty four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland

Associate

Date: 5 September 2007