WICKERSHAM & WICKERSHAM

[2013] FamCA 805

FAMILY COURT OF AUSTRALIA

WICKERSHAM & WICKERSHAM [2013] FamCA 805

FAMILY LAW – CHILDREN –Parenting – Where the father sought orders that he be permitted to have the children travel to City B, Country C during the September school holiday period – Where the parties had previously entered into consent orders regarding parenting arrangements for the children – Where the mother did not provide consent for the children travelling to City B to spend time with the father – Consideration of the best interests of the children – Where the court determined that it is not in the children’s best interests to spend time with the father in City B during the school holiday period – Where the father’s application is dismissed.

FAMILY LAW – COSTS – Where the mother sought an order for costs of the father’s parenting application – Where the court determined that each party bear their own costs of the parenting application.

Family Law Act 1975 (Cth) s60CC

APPLICANT: Mr Wickersham

RESPONDENT: Ms Wickersham

FILE NUMBER: SYC 2692 of 2011

DATE DELIVERED: 9 September 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 9 September 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Paul & Paul Lawyers

COUNSEL FOR THE RESPONDENT:	Ms Judge
SOLICITOR FOR THE RESPONDENT:	Goldrick Farrell Mullan Solicitors

Orders

(1)  That the Application in a Case filed by the Husband seeking the children spend time with him in City B, Country C is hereby dismissed.

(2)  That by consent, I make order 2 in the Application in a Case filed by the Wife on 26 August 2013, as set out herein:

2.That special service of this Application in a Case be dispensed with upon the service of the Application in a Case, Affidavit in support and brochure called Enforcement Hearings being served on Michael Antony Paul of Paul & Paul Lawyers, … by Pre-Paid Post and Document Exchange … Sydney.

(3)  That each party shall bear their own costs of the parenting proceedings today. 

NOTATIONS:

(4)  It is noted that the Husband intends to file a financial statement on or before Friday 13 September 2013. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wickersham & Wickersham has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2692 OF 2011

Mr Wickersham

Applicant

And

Ms Wickersham

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons were delivered orally.

2. These are proceedings brought by the father seeking orders that he be permitted to have the children travel to City B, Country C so that they can spend time with him during the coming school holidays.  There are two children of the parties, one of whom is now 14 years old and the other who is 11 years old.

3. Consent orders were made as to the parenting arrangements on 11 August 2011.  Those orders provided that the parents would have equal shared parental responsibility for the children and that the children would live with the mother.  The children were to spend time with their father as agreed or, failing agreement, on times specified in those terms which included no less than 21 days with their father during school holiday periods each calendar year.  If agreement could not be reached it was to be for 14 days during the Christmas school holiday period and seven days during the September/October school holiday period.

4. Order 34 of those consent orders provided that neither party shall be entitled to take the children out of the Commonwealth of Australia without the written consent of the other parent.  Pursuant to arrangements made between the parties the children stayed with their father for two weeks in January of this year.  In April of this year the children travelled to City F, Country G with their mother.  In May the children stayed with their father in Sydney for four days.  In July 2013 the children travelled to City D, Country E with their father for eight days.  They have thus spent 26 days with their father this year already.

5. The trips to City D, Country E and City F, Country G came about as follows.  The mother put a proposal to the father seeking to have his consent given to enable the children to travel to City F, Country G.  The father responded saying that he would consent to the travel to City F, Country G if the mother would consent to the children travelling with him to City D, Country E in the July school holidays and City B in the September school holidays.  The mother’s response was that if the father agreed for the children to travel to City F, Country G with her then she would agree to the children travelling to City D, Country E.  She indicated in March of this year that she did not consent to the travel by the children to City B and that if the father wished to pursue that course he would need to obtain a court order for travel.

The issues

1. Thus in determining what course to take it is important to bear in mind that the overarching principle is to act in the children’s best interests. One of the primary considerations raised in section 60CC of the Family Law Act is that it is in the interests of the children to have meaningful relationship with both parents and thus it would be in their interests to see their father regularly. It is accepted that the children have a good relationship with him. Of course, he can see the children, if he comes to Australia, and no objection was raised by the mother to that course. The issue is, therefore, whether the children should see their father in City B or in Australia.

2. It is part of the proposal that the children will travel unaccompanied to City B.  It appears that the travel is being paid for as a part of the husband’s employment entitlements which entitle him to travel tickets for the family. On 22 July 2013 the father in an email to the mother describing the proposed trip said, “I know that we have had chats about [H] (the younger child) not wanting to go as she does not want to travel alone.  If that’s the case then she has no other option, but stay at home.”  Omitting some sentences the father continued, “It may sound like a tough stance but [J] cannot suffer because of a fear that [H] has.”  The father then proceeded to say that perhaps the travel might be good for her because it might turn out to have boosted her confidence.

3. The children would appear to be well familiar with City B because the parties lived there between 2001 and 2009. 

4. One of the matters raised by the mother is that she submits there is an unacceptable risk that if the children travel to City B they will not be returned.  She points out that City B is not a Hague Convention country and that the husband is presently in breach of orders for the payment of money pursuant to the consent orders made 11 August 2011.  It is true that the sum of approximately $59 000 remains outstanding.  The father’s submission on that matter is that that shortfall arose because a property unexpectedly dropped in value and was sold for less than had been anticipated by the parties. 

5. The mother relies on this in two ways.  The first is she says that as a matter of policy the court should not make orders in favour of a person who is presently in breach of orders of the court.  Obviously there is some force in that.  Those orders are in the property proceedings and not directly relevant to the parenting issues.  Secondly, she indicates that there is a financial motive being coupled with the matters to which I will now refer.  Until recently the elder child’s school fees at private school have been outstanding.  Indeed, there is correspondence from the school saying that if the outstanding term 2 fees were not paid the child would not be able to attend school for the last term of this year.  The father asserts that he has recently paid those fees and says in his affidavit that he has annexed receipts that establish that.  There are in fact no receipts but there is some correspondence with the school from which a possible inference is that those fees have been paid.

6. The father says that he has paid fees in advance for term 3 and the younger child’s private school fees for when she commences high school next year and again says in his affidavit that he has annexed receipts that establish this.  There are no receipts attached and correspondence with the school does not establish that the fees have been paid in advance.

7. The father lives in City B.  He is engaged to be married to a person from Australia but who also lives and works in City B.  He, therefore, has a strong connection with City B.  On the material available to me it would indicate that his last significant connection with Australia are his children.

8. On the other hand, with the consent of the mother earlier this year, he took the children to City D, Country E.  Whilst the mother says that originally she had understood he was going to City D, Country E with a number of members of his family that did not occur and he ended up only going with his fiancé.  Even so, City D is part of Country E which is also not a Hague Convention country.  Whilst there may have been some difficulties with ticketing and the like, if there had been an intention to remove the children from Australia they could have been removed from City D, Country E.  Thus, whilst there is a risk that the children may not be returned from City B it is not a risk that is determinative of this application.

9. The mother referred to a conversation via the father which was disputed.  If the mother’s version is accepted it would indicate an intention to retain the children in City B.  In a matter such as this where conflicting versions are given and there is not the opportunity for that evidence to be tested in the usual way, the court is not able to take either version as being established.  There is, however, evidence which, if accepted, would indicate an intention to retain the children in City B. 

10. The position is that the parties, by consent, entered into a number of orders at the time when the father had an established residence in City B.  These orders did not permit the children to travel to City B.

11. The father does not say that he has been granted leave by his employer so that he would be able to look after the children in City B.

12. Rather, in correspondence by his solicitor he asserts that he has been given verbal approval for leave and that his request for leave will be formally granted only upon confirmation that the children will be travelling to City B.  That is not entirely satisfactory.  The evidence does not establish or seek to establish why it would be in the children’s best interests to see their father in City B as opposed to seeing him in Australia.  The father does not set out what he would propose to do with the children in City B, what their activities would be and who they would be with.

Conclusion

1. In correspondence the father has asserted that his position is that he will spend whatever it takes to have the children visit him in City B and that it is his right to see the children and to see them in City B.  Such an approach would not appear to be focussed on the needs of the children but rather on his perceived rights.  Given that if the father has leave available to him he could travel to Australia and given that the children have travelled overseas twice recently I am not satisfied that it is in the children’s best interests for them to travel to City B for the purpose of seeing their father in the September school holidays taking into account the possibility of a non-return and the other matters I have addressed.  The application in a case seeking that the children spend time with their father in City B is dismissed.

Additional Matters

1. By consent I make order 2 as sought in the Application in a Case filed by the wife on 26 August 2013 and I will note that the respondent intends to file a financial statement on or before Friday this week.

Mother’s Application for costs

1. The mother seeks an order for costs.  The general position is that costs are to be borne equally by the parties unless there is a good reason for ordering otherwise.  This is contrary to the position that prevails in many other courts where costs follow the event.  Two matters principally emerged as the basis for the application.  The first is that the application was wholly unsuccessful.  It is true that the application was not successful.  It was, however, an application the outcome of which was not obvious.

2. The second matter, is the financial position of the parties.  There is some scant evidence as to the mother’s financial position which would not appear to be strong.  The position with the father is not clear.  There is some evidence as to his income.  He is spending a significant amount in child support.  He is clearly in breach of the property orders in that he has not paid all of the sums that he has to pay but is yet to file a financial statement as requested by the wife and will be doing so some time this week. 

3. It was submitted that the husband had sought to bargain trying to, in effect, place pressure on the mother to consent to his orders by threatening to withhold payments.

4. Reference is made to two letters annexed to the wife’s affidavit filed 5 September 2013, in particular, one of 8 August 2013.  That letter it seems to me does not provide a particular threat.  In the second paragraph it points out that it was the father’s position that he could not afford to pay both the balance due on the property orders and to continue to pay the child support and school fees, and that the mother needed to indicate which course she wished the father to take.  The letter then proceeded to deal with the proposed City B trip.  I do not read that letter as offering a choice between the compliance with the orders being dependent upon consent to the trip.

5. Second, is a letter dated 6 August 2013 where it was said by the father’s lawyers:

   What we are instructed to put to you is that our client will either spend $3500 with us making an application to the Court for an order under section 65Y(2)(b), or he can pay that amount to your client in reduction of whatever may be his liability to her.

6. Again, I do not read that as an indication of a choice that the mother can secure compliance with the property orders by agreeing to the trip.  I read that as an indication that money spent on lawyers is not money that the parties can otherwise spend.  It is true that the father said in an email to the mother that he would “continue to spend as much as it takes to make sure that the kids visit me in [City B]” and that accordingly he has taken the view that he would rather direct the funds to lawyers rather than his obligations under the orders. 

7. The financial proceedings, any default in relation to those and the reasons for that default are not matters that are relevant as to what costs order should be made in these proceedings.

Conclusion

1. Having regard to the general proposition there is nothing that suggests there should be any different costs order.  The evidence does not establish that given his obligations the father has greater significant means than the mother although that position is based on very scant evidence and really depends on matters that are more particularly within the knowledge of the father.

2. Nevertheless, the usual position is that there should not be a costs order in matters of this kind and I am not satisfied in the present case that there should be one.  Each party will accordingly bear their own costs of the parenting application.  The costs in relation to the application in a case in relation to enforcement will need to abide the outcome of that application.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 9 September 2013.

Associate: 

Date:  10 October 2013