Portelli and Wymer

[2019] FamCA 428

FAMILY COURT OF AUSTRALIA

PORTELLI & WYMER [2019] FamCA 428

FAMILY LAW – INTERNATIONAL TRAVEL – Where the mother makes an application to take the child overseas for a holiday with her family – Where the father contends this application is an abuse of process, and she may not return – Where the mother agreed to place $500,000 security for the return of the child – Where the mother proposed ongoing communication with the father during the travels – Where the mother proposed that a travel itinerary and proof of return flights be provided to the father – Where there is no evidence or suggestion the mother has any connections in overseas jurisdiction – Orders made to allow the child to travel with the mother.

APPLICANT:

Ms Portelli

RESPONDENT: Mr Wymer

FILE NUMBER: SYC 1941 of 2019

DATE DELIVERED: 5 July 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 3 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kearney SC with Ms Barnett

SOLICITOR FOR THE APPLICANT: Lander & Rogers

COUNSEL FOR THE RESPONDENT: Mr North SC

SOLICITOR FOR THE RESPONDENT: Barkus Doolan

Orders

IT IS ORDERED

1. That the Mother be at liberty to take the child X born … 2015 X out of the Commonwealth of Australia from 15 July 2019 to 4 August 2019 (Overseas Holiday) on the following conditions:

   1.1The Mother provide to the Father by 5 July 2019 (or in the event a copy X’s passport is required to purchase his plane tickets, within 24 hours of the Department of Foreign Affairs and Trade issuing the passport for X pursuant to paragraphs 4 and 5 herein) copies of the following:

   1.1.1Return plane tickets;

   1.1.2Travel itinerary for her and X;

   1.1.3Travel insurance certificate; and,

   1.1.4Contact number for X during the overseas holiday.

   1.2By 4.00pm on 10 July 2019, the Mother cause:

   1.2.1the sum of $500,000 (the security payment) to be transferred into the Mother’s solicitors’ trust account by way of security in respect of the return of X to Australia by 4 August 2019 and the Mother shall be and hereby is restrained from causing or permitting any dealing in respect of such sum other than in accordance with these Orders; and,

   1.2.2her solicitors to provide to the Father’s solicitors confirmation of the receipt of funds in accordance with Order 1.2.1 herein.

   1.3Forthwith upon the Mother making X available for time with the Father in accordance with Order 3.2. herein, Order 1.2 shall stand discharged and the Mother shall be at liberty to deal with the security payment.

   1.4In the event that X is not returned to Australia by 3.30pm on 6 August 2019 then by this Order the Mother irrevocably authorises and directs her solicitors to forthwith pay to the trust account of the solicitors for the Father the security payment and the Father shall thereafter be at liberty to apply the security payment to legal costs and disbursements incurred in relation to and as a consequence of the Mother’s failure to comply with these Orders.

2. That for the period of the Overseas Holiday the Mother shall facilitate reasonable telephone or facetime communication between X and the Father during the Overseas Holiday, being not less than such communication on each Tuesday, Thursday and Sunday at 10am (being the time in the place in which X is) or such other time as the parties may agree in writing, with the Mother to initiate each such communication and to provide the Father with notice by text message of each such intended communication not less than 1 hour prior to it occurring.

3. That for the period of the Overseas Holiday paragraph 4 of the Orders of 17 May 2019 be suspended and, in addition to the time provided for pursuant to such Orders, time between the Father and X shall occur on the following occasions:

   3.1      From 4pm on Friday, 5 July 2019 to 6.00 pm on Sunday, 7 July 2019;

   3.2      From 3.30 pm until 6:30 pm on Tuesday, 6 August 2019; and

   3.3      From 4pm on Friday, 16 August 2019 to 6.00 pm on Sunday, 18 July 2019.

4. That the Father forthwith do all things and sign all necessary documents to jointly apply with the Mother for an Australian passport for X on an urgent and expedited basis with the Mother to solely meet the costs of such application and with the Mother to be entitled to retain such passport upon issue provided that she provide such passport to her solicitors forthwith upon X’s return to Australia in accordance with these Orders and the Mother shall be and hereby is restrained from causing or permitting any dealing in respect of such passport other than in accordance with an Order of this Court.

5. That in the event that the Father does not comply with paragraph 4 herein, the Mother be authorised pursuant to section 11 of the Australian Passport Act 2005 (Cth) to execute all documents necessary to obtain a passport for and on behalf of X and it is requested that the Department of Foreign Affairs and Trade forthwith issue the passport for X.

6. That the child, X born in 2015 (X), be removed from the Family Watch List for the purpose of enabling X to travel with the Mother for the Overseas Holiday.

7. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1941 of 2019

Ms Portelli

Applicant

And

Mr Wymer

Respondent

REASONS FOR JUDGMENT

1. Ms Portelli (“the mother”) and Mr Wymer (“the father”) are the parents of X aged 3 ½ years.

2. The parents separated on 25 March 2019.

3. After separation, the mother unilaterally moved with X to Melbourne.

4. Both parents filed applications for parenting orders on 27 March 2019, the mother in Melbourne and the father in Sydney. The issue of the appropriate venue for the proceedings has yet to be finally determined. The matter, at the present time, is proceeding in Sydney.

5. On 17 April 2019, orders were made by Senior Registrar Campbell requiring the mother to re-instate X’s residence in Sydney and providing for the time X was to spend with his father.

6. It is not in dispute that the mother was X’s primary carer when the parents lived together, or that she remains his primary carer.

7. X spends time with his father, on a fortnightly rotation, in the first week of each fortnight for three hours on Monday and then from Friday afternoon until Sunday and, in the following week, overnight on Thursday.

8. The application before the Court is the mother’s application to travel overseas with X for three weeks in July and early August 2019.

9. That application is opposed by the father.

10. The substantive proceedings before the Court concern X’s parenting arrangements and, in particular, whether he should live with the mother in Melbourne as she proposes, or live with the mother in Sydney and spend time with the father in Sydney as the father proposes.

THE MOTHER’S PROPOSAL

1. The mother proposes that X be permitted to travel overseas with her between 15 July and 4 August 2019. She proposes that the father be provided with copies of return tickets, an itinerary, evidence of travel insurance and contact information.

2. Without admissions, the mother offers to lodge the sum of $500,000 as security against X’s return.

3. She proposes electronic communication between X and the father while the child is away and make up time both before and after the proposed travel.

THE FATHER’S OPPOSITION

1. The father opposes the application. He firstly contends that the application is an abuse of process. He secondly contends that the proposal is not in X’s best interests.

2. I propose to deal with the issue of abuse of process as a preliminary matter.

3. The child was placed on the Family Law Watchlist (“the Watchlist”) administratively, upon the father’s filing an application for parenting orders.

4. That application came before Senior Registrar Campbell on 17 April 2019. On that occasion, both parties were represented by senior counsel.

5. The transcript of those proceedings was tendered.  The father sought the continuation of the Watchlist arrangement. Senior counsel for the mother told the Court that the mother did not wish to agitate the issue of the Watchlist “for the current time” although he submitted that such an order was excessive and unnecessary. Senior counsel for the mother conceded that, absent an order placing X on the Watchlist, the mother was restrained from taking him outside Australia without the father’s consent or the leave of the Court.

6. On behalf of the father, senior counsel now submits that, because the mother did not seek to agitate the Watchlist issue on 17 April 2019, her application as presently relied upon, to take X out of Australia for a holiday, is an abuse of process.

7. I do not accept that submission.

8. The issue being agitated before the Senior Registrar on 17 April 2019 was where, and in what arrangements, the child would live pending the resolution of the substantive proceedings.  There was no immediate dispute in relation to any proposed overseas travel. The decision on behalf of the mother not to argue that issue at that time was unremarkable and did not give rise to any restraint on her doing so at a future time.

9. Throughout the whole of X’s life, he has been accustomed to travel with one or both of his parents. The travel was both within Australia and internationally. In 2016 he holidayed with the mother in the Country F). In 2017 X and the mother holidayed in Country G. In 2018, they holidayed in the Country F and the father accompanied them for a part of that holiday.

10. In January 2019, the mother and X holidayed in the Country J.

11. Over the whole of that period, X and the mother regularly and frequently spent periods away from the father, usually in Melbourne but also in other parts of Australia.

12. Not only was X regularly away from his father’s care when travelling with his mother, but the father also travelled extensively without the mother and X. In 2016 the father travelled to City B, the Region D and Country C. In 2017 the father travelled to the Country F. In 2019 the father travelled to Country C.

13. On this occasion, the mother wishes to holiday in Europe on a yacht with her extended family.

14. It has been a regular and familiar feature of X’s life that, for periods of time, he has lived with his mother and his father has been absent.

15. There is no suggestion that these arrangements, put in place by the parents together, have had any detrimental effect on X’s relationship with his father.

16. Nothing in the evidence suggests that for X to have a holiday with his mother for three weeks in July and August would have any detrimental effect on that relationship. It was not suggested, in the father’s case, that the mother’s proposed make-up time was inappropriate.

17. In any event, it would seem from the father’s affidavit that his position is not that the child should not be away from him for three weeks, but rather that the child should remain in Australia. In his affidavit he deposed:

    ...While I appreciate that [the mother’s] father’s preference may be to sail around the Mediterranean, I say that the yacht could be brought to Australia, and any family holiday spent exclusively in Australian waters, with proper provision and restraint being put in place to prevent the yacht being able to venture out of Australian waters during the holiday in question.

18. The father’s real concern seems to be his assertion that the mother will not return X to Australia.

19. The father, in his affidavit asserts:

    ·    The mother at one time held a Country F passport.

    ·    The mother’s family is wealthy.

20. However, the evidence suggests that the mother’s whole family is based in Melbourne, the business which has generated the family wealth continues to be based in Melbourne and it is the mother’s application that she and X should be permitted to live in Melbourne.

21. There is no evidence, and no suggestion, that the mother has any substantial connections in any overseas jurisdiction.

22. I do not accept that the risk of the mother’s failing to return the child to Australia, if such a risk objectively exists, is such that it is not addressed by the offer of security in the sum of $500,000.

23. Orders will be made in accordance with the mother’s application.

PASSPORT

1. In the course of submissions, senior counsel for the father submitted that, in the event that travel were permitted, the father’s solicitor should hold the child’s passport after he returns to Australia.

2. The mother’s proposal is that the passport should be held by her solicitor.

3. I am not satisfied that it is necessary for there to be any arrangements for the passport to be held securely but, because the mother has offered to have the passport held by her solicitor, I will make that order.  

I certify that the preceding thirty nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 5 July 2019.

Associate: 

Date:  05/07/2019