Zaber and Scarfe

[2015] FCCA 3389

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZABER & SCARFE [2015] FCCA 3389

Catchwords:
FAMILY LAW – Children – travel – international travel – interim orders – where mother resides in (country omitted) – children reside with father in Sydney – application to vary consent orders.

Legislation:

Family Law Act 1975 (Cth), s.60CA

Cases cited:
Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725

Applicant: MS ZABER

Respondent: MR SCARFE

File Number: SYC 1183 of 2012

Judgment of: Judge Scarlett

Hearing date: 14 December 2015

Date of Last Submission: 14 December 2015

Delivered at: Sydney

Delivered on: 14 December 2015

REPRESENTATION

Solicitor for the Applicant: Mr O’Reilly

Solicitors for the Applicant: Barkus Doolan

Solicitor for the Respondent: Ms Blanchfield

Solicitors for the Respondent: Blanchfield Nicholls Partners

ORDERS

UNTIL FURTHER ORDER

1. The Respondent father is to make the children, X born (omitted) 2008 and Y born (omitted) 1999, available to spend time with the Applicant mother from 26 December 2015 until 24 January 2016.

2. For the purpose of the children spending time with the mother in accordance with Order (1) above, the mother is permitted to remove the children from the Commonwealth of Australia.

3. Within three (3) business days of the date of these Orders, the mother is to provide to the father an itinerary in relation to the children’s travel, including but not limited to flight details and contact details of where the children will be staying whilst with the mother.

4. The father is to ensure that the children are delivered to Sydney International Airport in sufficient time to meet the departure time for their flight to (country omitted) on 26 December 2015 and will collect the children from Sydney International Airport immediately upon their return to Australia.

5. The Application by the mother to vary order 4.4.2, made by consent on 13 November 2014, is refused.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1183 of 2012

MS ZABER

Applicant

And

MR SCARFE

Respondent

REASONS FOR JUDGMENT

1. An Application has been brought to the Court in circumstances of some perceived urgency by the mother, seeking orders in respect of some parenting orders into which the parties entered by consent on 13 November 2014.  There was one issue raised in the application in a case filed 9 December which was that:

   Pursuant to order 3 of the orders made 13 November 2014, the respondent father make X born (omitted) 2008 and Y born (omitted) 1999 available to spend time with the applicant mother during the period 18 December 2015 until 24 January 2016.  Further, that for the purpose of the children spending time with the applicant mother pursuant to order 1 above, the mother shall be permitted to remove the children from the Commonwealth of Australia.

2. The other order which was sought, and very much at the last moment, was brought by way of an oral application this morning.  The mother seeks that order 4.4.2 of the Consent Orders should be varied so as to remove a requirement that she should collect the children from a transit location, to (country omitted), and return them to the transit location to board their connecting flight back to Australia.

Background 

1. The brief facts are that the parties have two children, X who was born on (omitted) 2008, and Y who was born on (omitted) 1999.

2. It can be seen that X has now attained the age of seven years; Y is now 16 years of age.  The mother lives in (country omitted) and the father lives in Sydney.  For most of the time, the children reside with their father in Sydney but, as the Consent Orders provide, the children would travel to spend time with their mother in (country omitted) and would spend several weeks at a time there.  Indeed, Order 3 provided for some specific times and dates for the children to spend with their mother in (country omitted) and also in Australia.

3. As an example, Order 3.1.1 provided that the children would spend time with their mother from 4 January to 25 January 2015 and the intention was that that would be out of Australia, namely in (country omitted).  There was a further period of time in Australia and a further period of time in (country omitted).  There are orders about provision of notice and then order 4.4 contains Orders for the flights for the children.  Order 4.4.1 provides that the flights for the children should be direct from a mainland Australian port to their point of destination.  Order 4.4.2, which is relevant to today’s application, provides:

   If not a direct flight, the mother shall collect the children from the transit location, e.g., (country omitted), and return them to the transit location to board their connecting flight back to Australia.

Issues

1. The parties’ solicitors have had some discussion about these orders today and have been able to reduce the scope of the controversy between them significantly.  Initially, the mother had sought that the children would travel out of Australia on 18 December, which is Friday, and would return on 24 January 2016.  The father, in his Response, sought an order that the children should spend time with the Applicant mother during the period 27 December 2015 to 24 January 2016.

2. So there was some difference in the orders proposed for either party.  However, in the course of discussions, some change to the parties’ positions was recorded, in that the mother’s proposed travel date was varied to 22 December, which is next Tuesday, and whilst the father maintained his position that 27 December was an appropriate time, he was prepared to fall back to Boxing Day, 26 December.  The mother wants the children to travel and spend time with her in (country omitted) and sets out in her affidavit what the children do when they travel over there and what a good time they have.

3. There is no issue from the father as to the fact that the children love their mother and enjoy spending time with her, both in Australia and in (country omitted).  However, the father makes the point in his affidavit that last year the children in fact spent a longer period of time with their mother than the orders provided, namely, and importantly, that they spent Christmas 2014 with their mother.  It is his position that he would like the children to spend Christmas with him in Australia this year.  I have had some evidence tendered, of varying degrees of weight, including a large collection of emails setting out the correspondence between the parties.

4. I have had tendered from the father’s solicitor a list of public holidays in (country omitted) indicating that Christmas Day is not a public holiday in (country omitted), although New Year’s Eve and New Year’s Day are.  To my mind, it does not really matter whether Christmas Day is a public holiday in (country omitted) or not.  Christmas Day is a day of significance to a lot of people who live in this country and it is not surprising that a person living an expatriate lifestyle would still wish to spend Christmas Day in a traditional manner, which does involve spending time with the children on Christmas Day.

Consideration

1. This Court is replete with urgent applications from parents who specifically want orders relating to the Christmas holidays in general and Christmas Day in particular.  The fact that an applicant resides in (country omitted) does not, to my mind, alter that position.  The other item of controversy, as I said, is the mother’s wish to change Order 4.4.2 to remove the requirement for her to meet the children at the transit stop, as specifically provided in the Orders.  The fact is that there are, or so I am told and I see no reason to disbelieve it, no direct flights from Sydney to (country omitted).

2. The principal airlines flying in that direction are (omitted) whose flights to by way of (country omitted) and (omitted) whose flights go by way of (country omitted).  Apparently, last year the children travelled on a flight to (country omitted) and the mother met the children in (country omitted) and they were very happy to see her.  As I pointed out to the mother’s solicitor, the fact that the children were delighted to see their mother when they arrived in (country omitted) does not go towards the mother’s case that there should not be a requirement to meet the children at the transit point.

3. Certainly, it is put that the children are a year older and, indeed, Y has now reached the age of 16 and she and her brother are used to travelling internationally without an accompanying adult.  That may well be true but it is not really a change of circumstances.  With parenting orders, the Court goes right back to the rule in Rice & Asplund[1] to see the principle that there must be a significant change of circumstances in order to vary parenting orders.  These parties consented to orders 13 months ago relating to the children’s travel between Sydney and (country omitted) and now the mother seeks to change them on the basis that the children are a year older.

   [1] (1978) 6 Fam LR 570; (1979) FLC 90-725

4. That is not a significant change.  It is not at all unexpected.  Change, as their Honours said in Rice & Asplund, is an ever present factor in the human condition and it is certainly not surprising that the children are now a year older and Y is now a young woman of 16.  It would be surprising if the children were not a year older.  In my view, there is no evidence to support an application to vary this particular order, that the mother should meet the children at the transit point on their flight, which presumably will be (country omitted) or (country omitted), depending on the airline with which they travel.

5. Mr O’Reilly tells the Court that the mother proposes that the children travel with (omitted) because they are used to travelling with (omitted) and that would be a convenient arrangement for them.  That gets back to the main point that the mother wished to have dealt with by the Court.  When will the children be able to leave Australia and travel to (country omitted) to spend the Christmas holiday period with her?  Should it include Christmas again, as she wishes, or should it be after Christmas, on either 27 December or Boxing Day, as the father suggests?

6. The orders into which the parties agreed did not provide that there should be any specific arrangement about Christmas.  It is quite common in parenting orders that parties share Christmas, which is a bit difficult in this case, or alternate Christmas.  To my mind, the fact that the children spent Christmas with their mother in (country omitted) last year supports the view that the children should have Christmas with their father in Sydney this year.  The father’s position is that the children could go on Boxing Day or on 27 December.

7. Flights need to be booked as soon as possible and the more delay, the more the expense will be.  In my view, if the children can get a suitable flight on Boxing Day, then that is when they should go.  And they can return on the projected return date of 24 January 2016.  It is for those reasons I make the following orders until further order.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  16 December 2015