Wessell and Wessell

[2011] FamCA 351

FAMILY COURT OF AUSTRALIA

WESSELL & WESSELL [2011] FamCA 351

FAMILY LAW - CHILDREN – interim parenting – whether the mother be permitted to travel to the USA with the child – best interests – absence of expert evidence

Family Law Act 1975 (Cth): s60CC

APPLICANT: Ms Wessell

RESPONDENT: Mr Wessell

FILE NUMBER: SYC 5280 of 2010

DATE DELIVERED: 3 May 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rose J

HEARING DATE: 3 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: J Blackah

SOLICITOR FOR THE APPLICANT: Sydney Legal Practice

COUNSEL FOR THE RESPONDENT: B Obradovic

SOLICITOR FOR THE RESPONDENT: Harb Lawyers

INDEPENDENT CHILDREN’S LAWYER: Jennifer Weate & Associates

Orders

1. That the mother’s following applications are dismissed:

   (a)Initiating Application (Family Law) filed 20 August 2010 seeking interim parenting orders in relation to overseas travel;  and

   (b)      Application in a Case filed 22 December 2010.

2. That the substantive proceedings between the parties be expedited for hearing.

3. That the legal representatives for the parties and the independent children’s lawyer communicate in writing with the Associate to the Hon. Justice Watts (Case Management Judge, Sydney Registry) for the purpose of:

   (a)directions being sought to enable all relevant evidence to be filed and served;  and

   (b)      the fixing of a date for hearing.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC5280 of 2010

Ms Wessell

Applicant

And

Mr Wessell

Respondent

REASONS FOR JUDGMENT

Introduction

1. In these proceedings the mother has sought orders on an interim basis by way of variation of final parenting Orders made on 11 December 2007.

2. In particular, the mother seeks to vary Orders numbered 4(ii), 4(iii), 7, 8 and 9 made on 11 December 2007 to enable her to travel with the child of the parties, B born in February 2003 (who for convenience I shall refer to as “the child”).

3. The applications relied upon by the mother are her Amended Initiating Application filed 4 February 2011 in which interim orders are sought as well as her Application in a Case filed 22 December 2010 in which the same interim orders are sought.

4. The application is opposed by the father by his Response filed 13 October 2010 and otherwise confirmed in his Affidavit sworn 12 October 2010, which I have read.

5. I have read all the other affidavits and documents that were relied upon by the legal representatives for the parties including, by consent, the transcript of the Reasons for Judgment of Flohm J on 11 December 2007.

Historical background

1. A brief historical background to these proceedings is as follows.

2. The parties cohabited for a period of approximately five and a half years which commenced on their marriage having taken place in 1999 in the United States of America.

3. The parties separated on 22 April 2005.

4. The marriage was dissolved by decree made on 5 October 2006.

5. The orders sought to be varied, to which I have referred (which will hereinafter be referred to as “the 2007 orders”) provided in substance for each of the parties to be restrained from removing the child from the Commonwealth of Australia, orders for the child to be listed with the Airport Watch List and for specific periods of time that the father may spend with the child.

6. Subsequent to the 2007 orders the child has lived in the primary care of the mother.

7. The mother is in a relationship with a man who is described as her partner.  The mother and the partner do not share the same household.  However, on the evidence before me he clearly is an important adult in the life of the child.

Issues

1. There have been issues of conflict between the parties relating to whether or not the mother was intending to leave Australia with the child, ostensibly for a holiday but the real purpose of which was to live permanently in the United States of America and/or not to return to Australia with the child.

2. In addition, issues as to payment of child support by the father and his compliance with Order 17 made as part of the 2007 orders have been topics of agitation between them.

3. Having read their affidavits, it appears that there has continued to be a chronic and conflicted parental relationship which could only have impacted adversely on the child.  Indeed, the child has been receiving professional treatment or consultation due to a variety of emotional issues with which he has to contend.

4. The parties had taken part in an interview with a family consultant in this Registry who swore an affidavit on 29 November 2010.  I have not read that affidavit nor was I asked to do so by the legal representatives for the husband or mother or, indeed, the independent children’s lawyer.

5. There is no expert evidence before me at all in relation to the possible impact upon the child of the proposed travel to the United States for four weeks and whether or not it would be in his best interest to do so.  That would be unremarkable in a case involving a child of a similar age who did not have health issues, let alone ongoing professional assistance so far as emotional issues are concerned.

6. It remains a curious omission in the evidence that there was no evidence given at all by way of a report from that health professional, let alone from the family consultant who must have at least provided a memorandum following her interviews with the parties and the child, and implicitly, such a report or memorandum was part of her affidavit previously referred to.

Conclusion

1. I am not satisfied that on an interim basis it is in the child’s best interest to make the orders sought by the mother on the evidence before me.

2. In refusing to make the orders sought by the mother I should not be taken as criticising the mother or, making some implicit finding that her application lacked bona fides, or that there was some ulterior motive for it.

3. I am simply not satisfied on the evidence that has been adduced on her behalf that an ultimate finding can be made that it is in the child’s best interest to embark on the proposed travel to the United States for four weeks at the end of this year.

4. As I raised with counsel for the mother, the orders sought by her are parenting orders.  Consequently, the paramount consideration is the best interest of the child.  That concept is not left at large to be grasped by a judicial officer on the basis of what seems reasonable.

5. The Family Law Act, since the Amendments which came into force almost five years ago, set out the considerations that are relevant for determining the best interest of a child.

6. There are primary considerations which include the benefit to a child of a meaningful relationship with both parents.  I am concerned that the precise details of the manner in which the child would continue to communicate with the father whilst the child was overseas has not been adequately dealt with in the affidavits of the mother.

7. In addition, there are further considerations which are set out in s 60CC (3).  They include but are not limited to the relationship between the child and each of the parents and most importantly, the capacity of each of the parents to provide for the needs of the child, the likely effect upon a child of interruption to the pattern of time spent with the father and any other relevant issues.

8. So far as capacity is concerned, this child unfortunately has various emotional issues the subject of professional assistance to which I have earlier referred.  Consequently, what seems a simple matter namely a child taking a holiday for four weeks in a country which is a signatory to the Hague Convention is not so simple when it comes to dealing with this particular child.

9. There is a dearth of affidavit evidence by the mother which deals with her recognition of the child’s needs both physical and emotional, the manner in which those needs would be addressed while she is with him in the United States, the accommodation that would be available, the attention to his medical needs whilst he is in the United States and other matters which impact upon the capacity of the mother to care for the child’s needs.

10. Strangely, those matters are not made the subject of her most recent affidavit, even though that was apparently settled on her behalf by a legal representative, in contrast to her earlier affidavit when she was unrepresented.

11. The mother’s proposals also include that she travel to the United States of America for a holiday with her partner.  Again, for reasons that are unexplained there is no affidavit by the partner.  What makes that even more remarkable is that quite clearly there has been an issue for some time as to whether or not the mother is a flight risk, let alone the question of security that she could provide for return of the child.

12. Those matters in particular could have been the subject of an affidavit by her partner.  However, for reasons best known to her and those advising her no such affidavit was apparently filed let alone relied upon.

13. As a result, I am not satisfied that the best interests of the child are promoted as the paramount consideration for the proposed travel due to the alarming absence of evidence in the mother’s material, both in terms of her own affidavit, the absence of an affidavit by her partner and no expert evidence from both or either of the family consultant or the professional who has been assisting the child. 

14. These parties have a history of litigation in this Court.

15. The proceedings before me have been pending for quite some time.

16. In addition, they engaged in contested proceedings in 2007 in the Parramatta Registry of the Court.

17. The child continues to have issues that need to be addressed.  It cannot assist a small child for his parents to be continually engaged in a conflicted parental relationship.

18. Consequently, in view of those matters I will make an order that the substantive proceedings be expedited so that unless the parties do reach an overall compromise which places the interest of the child ahead of their own grievances, then a hearing will take place in the not too distant future.

19. To enable that to progress, I will make an order providing for the legal representatives for the parties and the independent children’s lawyer to correspond with the Associate to Watts J (Case Management Judge, Sydney Registry) for the purpose of the proceedings being listed for directions so that the matter may be put in order for a final hearing and dates for hearing allocated.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose delivered on 3 May 2011.

Associate: 

Date:  17 May 2011