Zlotnik & Gerasimov
[2021] FedCFamC1A 56
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Zlotnik & Gerasimov [2021] FedCFamC1A 56
Appeal from: Zlotnik & Gerasimov [2020] FamCA 713 Appeal number(s): EAA 135 of 2020 File number(s): SYC 503 of 2015 Judgment of: ALDRIDGE, GILL & HARTNETT JJ Date of judgment: 8 November 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal against final parenting orders – Discretionary judgment – Challenge as to time spent with between the child and his father – Orders for passports – Orders for interstate and international travel – Where the primary judge did not err in making such orders – Where the decision by the primary judge not “plainly wrong” – Appeal dismissed – Appellant to pay the respondent’s costs in a fixed sum. Legislation: Family Law Act 1975 (Cth) Pt VII and s 65DAA Cases cited: CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
House v The King (1936) 55 CLR 499; [1936] HCA 40
O’Brien v Komesaroff (1982) 150 CLR 310; [1982] HCA 33
U v U (2002) 211 CLR 238; [2002] HCA 36
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Number of paragraphs: 95 Date of hearing: 6 September 2021 Place: Heard in Sydney (via video link) The Appellant: Self-represented litigant The Respondent: Self-represented litigant The Independent Children’s Lawyer: Did not participate in the appeal ORDERS
EAA 135 of 2020
SYC 503 of 2015FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR ZLOTNIK
AppellantAND: MS GERASIMOV
Respondent
ORDER MADE BY:
ALDRIDGE, GILL & HARTNETT JJ
DATE OF ORDER:
8 NOVEMBER 2021
THE COURT ORDERED ON 6 SEPTEMBER 2021 THAT:
1.The appellant’s application to file and rely on the Further Amended Notice of Appeal and Amended Summary of Argument, both dated 3 September 2021, is dismissed.
2.The appellant’s oral application to adjourn the appeal hearing is dismissed.
THE COURT FURTHER ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the respondent’s costs of the appeal fixed in the sum of $2,390.85.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Zlotnik & Gerasimov has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, GILL & HARTNETT JJ:
INTRODUCTION
Mr Zlotnik (“the father”) and Ms Gerasimov (“the mother”) are the parents of B, born in 2012 (“the child”) who is now nine years of age. The parents have litigated their dispute concerning the care of the child over many years, first commencing with the father filing proceedings under Part VII of the Family Law Act 1975 (Cth) (“the Act”) for final parenting orders on 30 January 2015. At trial the matter had been before the Court at least 26 times.
The father appeals the parenting orders made by a judge of the Family Court of Australia (as the Court was then known) on 27 August 2020. The appealed orders provide that:
·the mother and father have equal shared parental responsibility for the child;
·the child live with the mother and spend time with the father during school terms for four nights from Thursday to Monday in a fortnightly cycle; and one half of the school term holidays, with two weeks during the Christmas school holidays; and on special occasion days;
·the Term 2 and Christmas school holidays are subject to an order providing for the mother to take the child overseas for up to four weeks each year during either of such holidays;
·each of the parents are permitted to take the child overseas and interstate in accordance with notice and information provisions;
·orders pertaining to the obtaining and holding of the child’s Country J and Australian passports (“the child’s passports”) are made and an application on short notice is provided for in the event the COVID-19 pandemic requires the cancellation or postponement of overseas travel; and
·provision is made for the father to have make-up time spent with the child, with the father being required to give notice to the mother.
The mother resists the appeal. The Independent Children’s Lawyer (“the ICL”), who was appointed to represent the child’s best interests, filed a Submitting Notice on 6 April 2021. By the filing of that Notice, the ICL submits to any order the Court may make in relation to the father’s appeal.
By an Application in an Appeal filed 4 March 2021, the father sought to be permitted to proceed with the appeal without having a transcript of proceedings before the primary judge included in the Appeal Book. By orders made on 7 April 2021 and amended on 8 April 2021 by Justice Ryan, the father was so permitted.
BACKGROUND
This background summary is derived from the reasons for judgment of the primary judge because the father made no challenge to his Honour’s primary findings of fact.
The mother was born in 1977 and is aged 43 years. The father was born in 1957 and is aged 64 years. Both the mother and father were born in Country J and both reside in Suburb BB, a suburb of Sydney.
The father has two daughters aged 38 years and 34 years at the time of the final hearing, who live in Queensland. There is a further infant child of the father, born to his current wife, Ms U. The child has a relationship with these half-siblings.
The parties met online and commenced a relationship during 2003. They commenced cohabitation in 2004. Around that time, the mother was granted permanent residency in Australia.
The parties separated temporarily in early 2011, and the mother moved out of the father’s home. In late 2011, the mother who was heavily pregnant with the child, resumed cohabitation with the father.
In December 2011, the maternal grandmother came from Country J on a six month visa and lived with the parties. She was present for the child’s birth in early January 2012.
When the child was four months old, the mother, maternal grandmother and the child, travelled to Country J with the father’s consent. They returned to Australia five months later on 26 September 2012, whereupon the grandmother received another Australian visa. The mother returned to part-time employment in October 2012 and recommenced full-time employment in March 2013. During those periods when the mother was at work, the maternal grandmother was the primary carer of the child.
The parents agree that final separation occurred in February 2013, when the child was 13 months of age. The mother, maternal grandmother and the child moved to rental accommodation in close proximity to the home of the father. The mother has not re-partnered since separation and the child has always lived with her.
Upon the child commencing primary school, the maternal grandmother began to spend six months each year in Australia and the other half of the year in Country J. The child has a loving relationship with his maternal grandmother who is of Country J ethnicity. The child’s main spoken language at home is Country J and he speaks English whilst at school.
The child has travelled to Country J in almost each year of his life. Following separation and in May 2013, the child, mother and maternal grandmother travelled to Country J. In June 2013, the mother left the child in Country J with the maternal grandparents. She returned to Country J in August 2013 and thereafter returned to Australia on 15 September 2013 with the child and the maternal grandmother. The mother had discussed this trip with the father and had indicated to him before her departure from Australia in May 2013 that he could visit the child whilst the child was in Country J. The father was in fact in Asia throughout the entirety of this period.
In April 2014, the child, mother and maternal grandmother again travelled to Country J. The mother returned to Australia approximately one month later, leaving the child in the care of the maternal grandmother. She returned to Country J in August 2014 and she, the child and maternal grandmother returned to Australia on 15 September 2014.
Pursuant to a court order, the mother and child again travelled to Country J in June 2015. In August 2015, the mother having already returned to Australia without the child, Justice Rees made orders permitting the child to stay in Country J with the maternal grandmother until 28 December 2015.
The child travelled to Country J with his mother in 2017, 2018 and 2019. On each occasion, the child’s passports were released to the mother pursuant to court orders.
Interim parenting orders were made by consent by Justice Rees on 5 August 2015 for the child to live with the mother and spend increasingly longer periods of time with the father. At trial, the child was spending time with the father as follows:
(a)each Tuesday from 6 pm until 6 pm on Wednesday; and
(b)from 3 pm on Friday until 6 pm Sunday every alternative weekend.
In addition, the child also spent half the Term 1, 2 and 3 school holidays with the father.
An order for equal shared parental responsibility was made by consent on 10 October 2018.
The trial
The trial proceeded over two days before the primary judge in January 2020 and the appealed orders were made on 27 August 2020.
The mother sought that:
·the child live with her and spend time with the father for four continuous nights in a fortnightly cycle during school terms; for half of the school term holidays and for two weeks in the Christmas school holidays together with special occasion days;
·she travel with the child to Country J for a period of not more than five weeks each year upon giving written notice to the father;
·both parents be at liberty to take the child for a holiday overseas or interstate upon the giving of notice to the other parent being at least three months and one month respectively;
·make-up time be provided to the other parent in respect of overseas travel as agreed by the parties in writing with no less than 28 days’ notice and
·orders be made in respect of the child’s passports which included that the mother retain them and that the father ensure the passports remained current and request of the mother the release of the passports to him as necessary.
The father sought that:
·the child spend equal time with each parent on a week about basis during school terms, half of the school term holidays and Christmas holidays and special occasion days and/or any other times agreed between the parents;
·for the parent who had the care of the child to be at liberty to travel anywhere in Australia at any time with information to be provided to the other parent as to the location of the child;
·the child’s name to be on the Family Law Watchlist with the child’s removal from Australia by either parent to be the subject of a further consent order between the parents, with the child’s passports to remain at the court registry unless released to one or other of the parents;
·notification by each of the parents to the other of travel outside of Australia with certain requirements to be met, including a $40,000 security bond; a restraint on the child entering non-Hague Convention countries and countries “affected by war, natural disaster, epidemic or social unrest” (Father’s Further Amended Initiating Application filed 8 December 2019, p.6); and that until aged 16 years, the child’s travel be accompanied by a parent at all times; and
·any make-up time agreed to by the parents be taken in full or in blocks of time within six months of the child’s return to Australia and the parent receiving make-up time give two months’ notice to the parent who owes the make-up time.
At trial, the ICL “formally indicated” to the primary judge that they “supported” the application of the mother (at [11]) and the primary judge continued:
11.… whilst simultaneously expressing some reservation about the viability of the child spending a large block period with the father, being Thursday afternoon through to Monday morning, as sought by the mother.
APPLICATIONS IN THE APPEAL
At the hearing of the appeal, the father sought to file and rely on a Further Amended Notice of Appeal and Amended Summary of Argument, both dated 3 September 2021. That application was opposed by the mother on the basis that she first became aware of the father seeking to rely on such material sometime after 4.33 pm on Friday, 3 September 2021. The appeal was listed for hearing on Monday, 6 September 2021. The mother was, as consequence, not in a position on the hearing of the appeal to deal with the issues raised in the father’s Further Amended Notice of Appeal and Amended Summary of Argument.
The father then sought by oral application to adjourn the appeal hearing to allow the mother an opportunity to read and consider his Further Amended Notice of Appeal and Amended Summary of Argument. The oral application for an adjournment was also opposed by the mother.
Both applications were dismissed and the reasons are as follows.
The father filed his Notice of Appeal on 24 September 2020. He thereafter filed his Amended Notice of Appeal on 3 March 2021.
On 4 March 2021, the Court made, relevantly, the following procedural order:
6.That the Appellant file and serve a Summary of Argument and List of Authorities, such list of authorities to comply with attachment “A” hereto, with the Eastern Appeals Registry on or before 4.30pm 13 May 2021.
On 18 June 2021, on the father’s application for an extension of time for compliance with the Orders made on 4 March 2021, the Court made, relevantly, the following orders:
3.That the Appellant be permitted to file and serve an Amended Summary of Argument and List of Authorities, such list of authorities to comply with attachment “A” hereto, with the Eastern Appeals Registry on or before 4.30pm Friday, 25 June 2021.
4.To avoid doubt, the Appellant be permitted to file and serve a Further Amended Notice of Appeal on or before 4.30pm Friday, 25 June 2021.
The father did not file in accordance with the above directions.
The father made submissions to the Court and gave no adequate explanation for his failure to comply with the orders of 18 June 2021. The father had in excess of two months to prepare his case and serve the mother with the material that he sought to rely upon. He determined not to do so.
The material sought to be filed and relied upon by the father on the hearing of the appeal included new grounds of appeal. Procedural fairness had not been accorded to the mother as she was entitled to expect that the father would comply with the procedural orders of the Court and so enable her to understand the case she was required to meet. Accordingly, the father’s applications were dismissed.
As such, the father proceeded on his Amended Notice of Appeal filed 3 March 2021.
The father’s Summary of Argument filed 14 May 2021 was limited in its addressing of the grounds of appeal as set out in his Amended Notice of Appeal. Accordingly, the father addressed much of the grounds of appeal in oral submissions on the hearing of the appeal.
GROUNDS OF APPEAL
In his Amended Notice of Appeal, the father seeks to challenge a discretionary judgment. In each of his grounds of appeal, the father’s complaint is that the primary judge erred at law in the exercise of his discretion by making orders, to use his words, “in form and substance that is unjust, inequitable and plainly wrong” (Ground 1).
The father contended in the appeal that the orders were infected by numerous discretionary and legal errors including inconsistencies in the orders of the primary judge. The appeal before the Court made no challenge to the findings of fact made by the primary judge.
The applicable principles for appeals from discretionary decisions are stated by the majority of the High Court of Australia in House v The King[1], namely:
The manner in which the appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law responses in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
[1] (1936) 55 CLR 499 at [504]–[505].
The proper exercise of discretion in parenting cases may be broad, “[i]t is a mistake to think that there is always only one right answer to the question of what the best interests of a child require”.[2]
[2] CDJ v VAJ (1998) 197 CLR 172 at [152].
For the reasons that follow, the appeal must be dismissed.
Ground 1
Did the primary judge fail to give proper regard to the effect of the orders made on the “occasions and events that are of particular significance to the [child]” and fail to ensure that the orders contained the words “as agreed, and failing agreement as follows”?
The father’s complaint, in the first paragraph of this ground, is that the primary judge failed to give proper regard to the negative effect of Order 3(a):
… on the occasions and events that were of particular significance to the child’s physical and intellectual well-being, namely [sport and computing] classes on Tuesday and a [martial arts] class on Wednesday of each week of the school terms.[3]
[3] The father’s Amended Notice of Appeal filed 3 March 2021, p.3.
In his oral submissions, the father conceded that he made no reference in his Case Outline placed before the primary judge to the child undertaking sport and martial arts classes in each week of the school terms. Further, he asserted that despite his particularisation of sport and martial arts classes in his ground of appeal, the type of activity undertaken during the school term was in fact superfluous. Put simply, the error as claimed by the father is that the primary judge did not make an order as desired by the father, but rather an order which he claimed reduced the child’s time with him significantly and lessened its quality. It was an order that the father claims did not involve him in the child’s routine in the same way as provided for in earlier interim orders of the Court.
In oral submissions the father further asserted that the school term orders making provision for the child to spend time with him were not substantial and significant orders because of the absence of fixed days each school week. The father however conceded, that in the submissions he placed before the primary judge, he agreed that the orders as sought by the mother and the ICL did provide for substantial and significant time spent by the child with the father, albeit “at the lowest side of the scale” (Father’s Case Outline filed 29 January 2020, paragraph 40).
It was not necessary for the primary judge to make orders for the child to spend some hours each Tuesday and each Wednesday with the father to make provision for substantial and significant time in the terms of s 65DAA(3) of the Act. The primary judge did not err in failing to make orders which the father sought. His Honour was required to consider the best interests of the child. The primary judge was not obliged in the course of that exercise to make orders that included the existing interim arrangement.
In the second paragraph of this ground, the father’s complaint is that the primary judge failed to ensure orders for time included the words “as agreed, and failing agreement as follows”.
The primary judge did not err at law as argued by the father in such failure. His Honour was not confined to a choice between the suggestions of the parents. The primary judge was required to, and did, make orders in the best interests of the child as described at [154]–[160] of his reasons for judgment.
The parents are able to make their own agreements from time to time in respect of the care of the child.
In those circumstances where they are unable to agree, as evidenced by the competing applications before the Court, the primary judge made orders for the child to spend time with the father as set out in the orders.
That different orders could have been made by the primary judge does not indicate error by the primary judge.[4]
[4] U v U (2002) 211 CLR 238 per Kirby J at [117].
Accordingly, there is no merit in Ground 1.
Ground 2A
Did the primary judge err by failing to make an order for the child to spend time with each parent on their respective birthdays and by failing to provide reasons?
By this ground, the father submits that the primary judge erred in failing to make an order for the child to spend time with each parent on their respective birthdays and that such asserted error was a failure of the primary judge to exercise his discretion in accordance with s65DAA(5) of the Act.
This was an order sought by the father before the primary judge. It was not an order sought by the mother.
The final orders include as special occasion time that, provided the child is in Australia, the child will spend time with each parent on special occasions as agreed and failing agreement as set out in Order 3(d)(i). Those special occasions do not include either parent’s birthday.
Contrary to the father’s assertion, the primary judge was not obliged to make the order as sought by the father.
The father conceded that the orders proposed by the mother and supported by the ICL, did provide for substantial and significant time. There was thus no issue in dispute and accordingly no reason for the primary judge to specifically address this issue in his reasons for judgment.
Further, it is not necessary for a trial judge to “mention every fact or argument relied on by the losing party as relevant to an issue”.[5]
[5] Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62].
It is clear that his Honour considered that the suite of orders, as a whole, provided the time with each parent that was considered to be in his best interests. The omission of time on birthdays cannot be seen as unreasonable or obviously wrong.
Ground 2B
Did the primary judge err by ordering that the father’s time with the child on special occasions be subject to the child being in Australia?
By this ground, the father argues that the primary judge erred by misinterpreting the law in not providing for the child to spend special occasion times with him, being Christmas, New Year’s Eve and the child’s birthday, in circumstances where such time spent with would occur provided that “the child is in Australia” (Order 3(d)(i)).
If the child is not in Australia, the orders result in the child spending these special occasion times with the mother. Order 4(a) provides for the mother to take the child overseas during the Christmas school holidays, of which time can include some of the special occasion times that the child has with the father. The order otherwise makes provision for each parent to agree as to the child spending time with the other parent on special occasions.
There was no obligation upon the primary judge to make a special occasion time spent with order in the terms as sought by the husband. The orders of the primary judge as to special occasions were those as proposed by the mother and agreed to by the ICL. Further, they were a part of the orders conceded by the father to be orders for substantial and significant time.[6]
[6] O’Brien v Komesaroff (1982) 150 CLR 310 at 319.
Ground 2C
Did the primary judge err by failing to ensure the child is not at risk of further litigation by making “conflicting orders”?
By this ground, the father argues that the primary judge erred by failing to ensure that there was not a risk of further litigation due to conflicting orders as made by the primary judge.
The first sub-ground as set out in Ground 2C was not pressed by the father.
The second sub-ground as set out in Ground 2C was in the form of a submission made by the father that the orders as to the mother’s overseas travel with the child and in particular Order 4(b), will result in a contravention by the mother of Order 3(a)(i). He claimed the mother cannot take the child overseas for up to four weeks each year in the Term 2 school holidays without breaching Order 3(a)(i).
There is no merit in this submission. The Term 2 school holidays, being three weeks in duration as identified by the father, will allow the mother to take the child overseas for up to four weeks by including either the last week of Term 1 or the first week of Term 3.
However, the father conceded in his oral submissions that the mother could possibly take the child overseas for four weeks without interfering with the time the child should spend with him pursuant to the orders.
The structure of the orders therefore gives rise to a possibility that the mother could act in such a way that the child’s time spent with the father would be interfered with, but the mother could also act in a way that does not impinge on the time the orders provide for the child to spend with the father. This, therefore, is not a difficulty with the formulation of the orders but rather an issue as to compliance by the mother with them.
Ground 2D
Did the primary judge err in making an order for make-up time?
By this ground, the father complains that the primary judge erred by making Order 5 in the form of a directive for make-up time which neither party had requested in their written submissions.
No error by the primary judge attended the making of this order. The primary judge was at liberty to make orders supported by the evidence which promoted the best interests of the child.
His Honour did not require the agreement of the parties to an order made by the court and indeed, as set out at [153] of his reasons for judgment, the primary judge noted his finding that the parties had a “lack of an ability… to communicate” and “difficulties… making co-parenting arrangements work”.
Accordingly, there is no merit in any of the sub-grounds in Ground 2.
Ground 3
Did the primary judge err by “restricting any potential court application regarding the child’s overseas travel to a single reason of COVID-19 pandemic”, failing to make orders taking into account “the mandatory 14-day quarantine” upon return and “failing to ensure the child is protected from the risk of being left behind by the mother” in Country J?
By this ground and in the first paragraph of Ground 3, the father complains that the primary judge made orders that restricted any potential court application regarding the child’s overseas travel to a single reason of the COVID-19 pandemic, thus making nugatory any other valid reason for objecting to the child’s travel overseas. Further, the father complains in the second paragraph of Ground 3 that the orders made by the primary judge failed to take into account a mandatory 14-day quarantine period upon any return of the child to Australia.
The primary judge made no injunctive order restraining either party from bringing any application as to the child’s overseas travel. Rather, the primary judge made a discrete order for either parent to make an application on short notice to consider whether, in respect of either parent’s proposed overseas travel for the child, the then current position of the global COVID-19 pandemic should result in a cancellation or postponement of such proposed travel.
Otherwise the primary judge made orders permitting the child’s overseas travel in accordance with the orders proposed by the mother and supported by the ICL and not in accordance with those proposed by the father which sought to severely restrict the child’s overseas travel.
Again, that the primary judge did not make an order as sought by the father is not an error. His Honour was not obliged to take into account any quarantine period. The primary judge was not asked by either parent nor by the ICL to make orders in respect of any possible quarantine period upon the child’s return to Australia. Whether or not that is a relevant matter at the time of any application will be determined at the time of hearing of that application.
In the third paragraph of Ground 3, the father complains that the primary judge failed to ensure the child was protected from the risk of being left in Country J by the mother, as had occurred in 2015, and gave no reasons for rejecting the father’s written submission that the mother should accompany the child throughout his stay overseas including in transit until the age of 16 years.
The primary judge was clearly aware of the orders sought by the father as set out in [161] of his reasons for judgement. His Honour considered the father’s opposition to the child travelling to Country J with the mother. At [173]–[178] of his reasons for judgment:
173.Since at least 2015 the father has been suspicious of the mother’s intentions when travelling overseas. From that time the father has attempted to impose what the mother has reasonably perceived as onerous conditions on the child’s overseas travel. The application before the court by the father represents a continuation of his attempt to impose such conditions. The father indicated that he thought the mother might up and leave with a new partner and job in Country J. He also made the submission that Country J was a volatile place and (in effect) invited the court to take judicial notice that there was political unrest in Country J and that the government was trying to get more control and it could “blow up” any time. I am not prepared to take judicial notice of those alleged facts nor place any weight on that submission
174.I find that the mother is not a flight risk. I find that it is not appropriate to require the mother to obtain a consent order every time she wishes to travel overseas with the child; she certainly should not be stopped from visiting Country J with the child during the Australian Christmas holidays and there is no need for the child to remain on the watch list on a continuing basis.
175.The hearing took place before the global COVID-19 pandemic. The father did raise the issue of the emerging problem arising from the Coronavirus but at the time of the hearing there was no evidence that would have predicted the extent of the pandemic. The father has not sought to reopen the case to make any further submissions relating to the current situation. I did consider inviting further submissions on the issue but I have weighed that against the history of the litigation and the effect of it upon the mother and likely [effect] upon the child and my assessment of the parenting capacity of the mother which is that she is a very loving and capable parent who would not expose the child to undue risk and would competently assess whether or not it was appropriate to travel to Country J in the immediate future. She should be allowed to make her own assessment as to when it is safe to give notice to the father of her intention to travel overseas with the child.
176.Once the mother gives the father the requisite three months’ notice of her intention to travel overseas with the child, if the father believes that the global pandemic makes it unsafe for her to do so, the father will be give[n] liberty to approach the Court for an order that the mother’s overseas travel should be postponed. Similarly the mother, if she has concerns about notice she receives from the father in respect of overseas travel, can also apply to the Court within fourteen days of having received that notice.
177.In relation to the question of a security bond, the father did not cross examine the mother in relation to the issue. There was no evidence as to how the mother would raise those funds. There was no evidence about how the amount was calculated. The ICL submitted that surety should not be ordered. The mother submitted that the condition was onerous and not necessary given the history of return travel. I accept those submissions. It is not appropriate to make an order for surety against the mother in this case. The mother did not seek any order for surety against the father.
178.I generally find that the orders that the mother proposes (and supported by the ICL) in relation to overseas travel to be appropriate. I shall make the order that the mother seeks but limit its duration to four weeks rather than five weeks. The mother will be able to take the child to Country J over the Christmas holiday period for four weeks and if that involved the father having to give up some of his time during Christmas school holidays then the father is able to require makeup time in the following term 1 school holidays. Alternatively, the mother will be able to do what has happened in the past and that is visit Country J during the European summer. That would be facilitated by the child being with the mother during the whole of the term 2 school holidays and being out of school for about two weeks. Although that would involve missing a couple of weeks of schooling the child would receive the advantage of the continuing experience with his Country J culture. In the event that the mother takes the whole of term 2 school holidays for overseas travel with the child, any makeup time for the child with his father which he requires would take place in the following term 3 school holidays.
The primary judge clearly addressed the father’s concerns. He made orders for the mother or the father to take the child overseas and for no other person to do so.
Accordingly, there is no merit in Ground 3.
Ground 4
Did the primary judge err in making orders requiring the father to maintain the child’s passports?
In essence, the orders provided for the mother to retain the child’s passports and for the father to request the passports from her on the occasions he was to travel overseas with the child (Order 12). He was also obliged to do all acts and sign such documents as necessary to issue or keep the passports current (Order 9). No such obligation was imposed on the mother.
By this ground, the father argues that the primary judge erred by placing no obligation upon the mother to do all acts and sign such documents to keep current the child’s passports and likewise placed no obligation upon the mother, nor provided a timeframe for her, to release the child’s passports to the father to facilitate the child’s overseas travel with him.
In his oral submissions, the father described these orders as unenforceable and unfair. We do not accept that they are. On the contrary, they are entirely unremarkable orders providing for the management of a child’s passports.
The father submitted that, as there was no obligation on the mother to maintain the child’s passports, she could, by failing to do so, prevent the father travelling overseas with the child.
The evidence before the primary judge was that the mother had travelled almost yearly with the child to Country J. She held the child’s passports and had ensured that his passports remained valid and did not expire. The mother supported overseas travel for the child to be undertaken by either parent. There was no evidence that she would be obstructive, such that the orders as submitted by the father should have been made or needed to be made.
Nor is there error in the mother not having a timeframe within which to provide the father the child’s passports, in the event the passports are required by the father to facilitate the child’s overseas travel. Again there is no evidence that such an order was required and if the mother unreasonably failed to provide the passports, she would be in breach of the orders.
Accordingly, there is no merit in Ground 4.
Ground 5
Did the primary judge err in making different orders for the mother and father in respect of providing notice to each other about intended travel with the child?
By this ground, the father complains that the primary judge erred by requiring in Order 15, that each parent, when taking the child interstate, provide the other parent with at least one month written notice of the intended interstate travel. The father argued that this was an “unreasonable demand” which “severely complicat[e] the logistics of the child’s ability to visit his sisters in [Queensland]”.
This was an order sought by the mother and not sought by the father. The father conceded that this was an order not addressed by him before the primary judge. It is an order the father describes as unfair.
This ground is however nothing more than a disagreement by the father with the order as made by the primary judge. No error is established.
Accordingly, there is no merit in Ground 5.
CONCLUSION
There is no merit in any of the grounds of appeal stated.
The father has failed to identify any error or argument which supports his assertion that the primary judge was “plainly wrong” in respect of any ground of appeal. The submissions as made by the father were misconceived.
Accordingly, the appeal will be dismissed.
COSTS
The mother sought an order that the father pay her costs of the appeal in the event that it was dismissed. The father accepted that in those circumstances such an order should be made.
The issue for determination is the quantum of such costs.
The mother sought a sum on a party/party basis. She produced two tax invoices from CC Law Pty Ltd dated 5 March 2021 and 9 April 2021. The quantum claimed in the first invoice was in the sum of $1,499.85, for work performed in respect of the appeal from 26 February 2021 to 4 March 2021. The second invoice was in the sum of $891, for work performed in respect of an Application in an Appeal filed by the father and heard on 7 April 2021. Thereafter, the mother was self-represented.
The total costs claimed by the mother are $2,390.85. These costs are reasonable in quantum. Accordingly, there will be an order that the father pay the mother’s costs fixed in this sum.
I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Gill & Hartnett. Associate:
Dated: 8 November 2021
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