Windsor and Kava (No 2)

[2015] FamCA 1155

FAMILY COURT OF AUSTRALIA

WINDSOR & KAVA (NO 2) [2015] FamCA 1155

FAMILY LAW – CHILDREN – Best interests of the children – Whether the children should be permitted to travel to Singapore to spend time with the mother – Where the father opposes the application – Where final consent orders previously made that children live with the mother but which are currently suspended until “mirror orders” are registered in Singapore

Family Law Act 1975 (Cth)

APPLICANT: Ms Windsor

RESPONDENT: Mr Kava

INDEPENDENT CHILDREN’S LAWYER: Ms Beach

FILE NUMBER: PAC 3320 of 2010

DATE DELIVERED: 18 December 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 14 December 2015

REPRESENTATION

APPLICANT – SELF-REPRESENTED LITIGANT: Ms Windsor (appearing by telephone)

RESPONDENT – SELF-REPRESENTED LITIGANT: Mr Kava

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lara Beach of Mahony Family Lawyers

Orders

1. That X born … 2004 and Y born … 2009 (“the children”) spend time with the mother from 28 December 2015 to 18 January 2016 in Singapore.

2. For the purpose of Order (1), the children are permitted to fly as Unaccompanied Minors with Singapore Airline:

   (a)leaving Sydney on 28 December 2015 at 9.05 am and arriving in Singapore at 2.15 pm;

   (b)leaving Singapore on 18 January 2016 and arriving in Sydney at 5.55 pm, unless the suspension of the orders dated 24 June 2015 is discharged prior to that date and the children commence living with the mother in Singapore.

3. To facilitate Orders (1) and (2), the father shall take the children to Sydney Airport for the purposes of the flight specified in Order 2(a) and take all steps required to check them into the flight.  The father shall send a sms to the mother once the children have checked in for travel advising the mother of such and another sms to the mother once he has collected the children when they arrive in Sydney on 18 January 2016 advising the mother of such.

4. The mother shall send a sms to the father once she has collected the children on 28 December 2015 advising the father of such and another sms to the father once the children have checked in for travel on 18 January 2016 advising the father of such.

Notation

1. The travel itinerary confirming the travel arrangements for the children is annexed to the mother’s affidavit sworn 12 November 2015.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Windsor & Kava (No 2) 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 PARRAMATTA

FILE NUMBER: PAC 3320 of 2010

Ms Windsor

Applicant

And

Mr Kava

Respondent

REASONS FOR JUDGMENT

Introduction

1. The mother in parenting proceedings which were concluded in June 2015, seeks orders that the parties’ two children spend time with her in Singapore during the Christmas holidays.  Under the final parenting orders to which both parties consented, the children are to reside with the mother in Singapore and spend defined time with the father in Singapore and Australia.  These Orders are currently stayed for reasons which are later explained and the children are living with their father in Australia.

2. The father opposes the application on the basis that, if the children were permitted to spend time with their mother in Singapore, he contends there is a risk that they will not be returned to Australia.  He contends that this risk arises as the final orders also provide that the parenting arrangement (particularly that the children were to live with the mother in Singapore) is stayed until “mirror orders” are in place in Singapore, and this had not yet been done.

3. It is the mother’s position that in the past, throughout the proceedings which have been conducted over many years, the children had spent half of their school holidays with her in Singapore and she has on all occasions previously returned them.  It is also her position that the father has not given his consent to this holiday time simply to be obstructive which is consistent with his obstructive behaviour throughout the proceedings.

4. Immediately subsequent to hearing the application, I also became aware that the father’s appeal against the June 2015 consent orders had been dismissed, and the Reasons for Judgment of the Full Court are available to me.  The question for me to determine is whether it is in the children’s best interest for them to travel to Singapore to spend holiday time with the mother as she seeks.

Background

1. The children who are the subject of these proceedings are two boys, X who is 11, and Y, who is six.  The parties have been in dispute in relation to the children’s parenting for many years.  In 2012 they participated in a seven day contested hearing and the proceedings determined recently commenced in early 2014.  From time to time since August 2014 the children have spent time with their mother in Singapore and she has facilitated their return to their father in Australia in accordance with orders.

2. On 22 June 2015 after three days hearing, the parties reached an agreement and consent orders were made by the trial judge in the terms agreed to.  Pursuant to those orders the mother is to have sole parental responsibility for the children, they are to live with her and she is at liberty to relocate the residence of the children to Singapore.  The children are to spend defined time with the father, including block periods of two or three weeks during school holidays.  This time is to occur in Australia unless the father nominates that it occur in Singapore.  Other orders also provide for matters such as communication, and the provision of information relating to the children and their schooling, and medical issues, and the like.

3. The June 2015 orders also provide that the operation of the orders are to be suspended until such time “as the father and the mother have obtained under the Guardianship of Infants Act (Singapore) “mirror orders” reflecting the terms of the consent orders”.  There are additional orders requiring the parties to do all things necessary to expeditiously make application to the appropriate court in Singapore for mirror consent orders to be made and for the parties to equally pay any necessary costs associated with the obtaining of the orders. The parties are then required to provide those orders to the Independent Children’s Lawyer (“ICL”) and the Court will upon being notified by the ICL confirm that the suspension of the orders is discharged.  As the children remained living with the father in Australia during the suspension of the final orders, provision was made for the children to spend time with their mother in Singapore during the (then impending) July 2015 school holidays.

The Mother’s Application

1. The mother filed a very short affidavit in support of her application.  She did not refer to the father having lodged an appeal against the June 2015 consent orders, the hearing of that appeal and its determination two days prior to the hearing of this application or the progress of the parties’ application before the appropriate court in Singapore to obtain “mirror orders”.

2. The father did not file any affidavit in response to the mother’s application. However, it became clear in the course of the hearing that the father had lodged an appeal, that the June 2015 orders had not been stayed pending appeal and that the proceedings in relation to application for “mirror orders” in Singapore is yet to occur.  The mother said in the course of the hearing that the father’s appeal prevented her from “registering” the consent orders in Singapore but this asserted fact was not contained in her affidavit.

3. The mother’s position simply put is that there have been previous occasions since August 2014 when the children have travelled to Singapore for holiday time with her and that she has always returned them in accordance with orders. Further, although the June 2015 orders provide for a mechanism for the children to spend time with the mother in Singapore in the June/July holidays following an agreement the parties had reached, the father has not consented to the children spending any time with the mother in the October or Christmas holidays.  It is to be remembered that the June 2015 orders were suspended until the “mirror orders” were obtained in Singapore.  The June 2015 orders only referred to the children having holiday time with their mother in the June/July 2015 holidays.  It can be inferred that it was anticipated that the “mirror orders” would have been obtained soon after the consent orders were made and it was thus unnecessary for the orders to provide for time with the mother beyond July 2015.

4. Although the father did not file an affidavit, it seems that most factual matters were not in contest.  Given the time constraints when the matter was heard in a busy duty list, one week before the Christmas holiday break, I permitted the father to simply make submissions in relation to the matter.  In those submissions, it appeared that the father was critical of the mother for not having taken steps to obtain “mirror orders” in Singapore as required under the orders, and his alleged fears in relation to the mother not returning the children appeared to be based upon her failure in this regard.  Curiously he also expressed a fear that the mother may register the children in Singapore without his consent.

5. So far as the father’s complaints are concerned, the consent orders require both parties to obtain “mirror orders” and both were to do all things necessary to expeditiously make application to the appropriate court in Singapore for consent orders under the relevant Singapore legislation.  As stated, I have no evidence before me as to why this did not occur shortly after the making of the June 2015 consent orders, and I have no basis to infer that the mother was responsible for any delay.  Further, the fear that the mother may register the children in Singapore without the father’s consent is completely at odds with the orders made in this Court with his consent which require both parties to act expeditiously to obtain mirror orders.

6. Annexed to the mother’s affidavit is email correspondence between herself and the father in which she seeks to obtain his consent to the children travelling to Singapore in the Christmas holidays.  In his response, the father says that “the children won’t go to Singapore until court proceeding finish all the court proceeding in February 2016 (sic).”  He also suggests that the mother should return the children and their passports to Australia and that this time together occur in Australia.  He concludes his email with “I won’t answer you email any more. Please don’t email me anything”.  In submissions, the father remained of the view that the mother should travel to Australia to spend time with the children in the Christmas holiday period.

7. The mother seeks orders that the children spend three weeks with her in Singapore.  She proposes that the children either return after three weeks with her in time for the commencement of the school year in Australia or, if she is able to obtain “mirror orders” prior to the commencement of the school year, they will live in Singapore with her pursuant to the consent orders.  In my view, there is no unacceptable risk that she will simply retain the children and not obtain “mirror orders” in Singapore.  As indicated, I am not satisfied that the mother is responsible for any delay in instituting proceedings in Singapore and she has every reason to do so without delay given that the orders are suspended until this occurs.

8. In my view, the father is opportunistically attempting to maintain control over the children’s time with their mother, even though he has consented to orders that they reside in Singapore with their mother and that she have sole parental responsibility for them.  In circumstances where the Full Court rejected his appeal that he acted under duress when consenting to the orders, and yet he continues to argue that registration of those orders in Singapore may occur “without his consent”, I also have concerns about his bona fides in opposing this application.

9. In addition, it is not disputed that on previous occasions the mother has returned the children to Australia as required under the orders following their spending time with her in Singapore.  It is of particular significance in my view, that she returned them after the July 2015 holidays, after the consent orders were made, but were suspended.  There is no reason to expect that she will not do so again.  It is also clear from the email exchange that she has acted reasonably in seeking the father’s consent to the Christmas holiday time and has had regard to his wish to spend Christmas with the children.  The father’s response, particularly informing the mother that he won’t answer the mother’s emails in future, in my view, is unreasonable.  In the albeit unlikely event that “mirror orders” are obtained in Singapore during the three weeks the children are there, it would be completely in accordance with the consent orders for the children to remain living with the mother there.

Conclusion

1. Orders were made by consent between the parties in June 2014 providing for the children to live with their mother in Singapore and spend defined time with their father in Singapore or Australia.  The orders were challenged on appeal by the father but that appeal was not successful.  The orders were stayed pending the parties taking action in Singapore but for reasons unknown those actions were not taken in the anticipated period.  During the period in which the orders are suspended no provision was made for the children’s time with their mother in school holiday periods other than in July 2015.  It appears it was simply not anticipated that the suspension would have continued this long.  Pursuant to the consent orders the parties and the Court were clearly satisfied that it was in the children’s best interest to live in Singapore with their mother and for her to have parental responsibility for them.  In circumstances where the children have not seen their mother for five months, it is undoubtedly in their best interests for them to spend three weeks with her in the school holiday period while the parenting orders are suspended.  In these circumstances, I am satisfied that it is in the best interests of these children for the mother’s application to be granted.

2. In addition to the orders sought by her (set out as 4(a) and (b) in her Application in a Case) I make orders in the same terms as those made on 24 June 2015 to facilitate the orders sought by her.

I certify that the preceding eighteen paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 19 December 2015.

Associate: 

Date:  17 December 2015