Coghlan and Coghlan

[2011] FamCA 747

FAMILY COURT OF AUSTRALIA

COGHLAN & COGHLAN [2011] FamCA 747

FAMILY LAW – application to obtain Australian passports – mother restrained from obtaining Country D passports

APPLICANT: Ms Coghlan

RESPONDENT: Mr Coghlan

FILE NUMBER: MLC 10100 of 2009

DATE DELIVERED: 9 September 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 9 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Stoikovska

SOLICITOR FOR THE APPLICANT: Springvale Monash Legal Service

COUNSEL FOR THE RESPONDENT: Mr Buchecker

SOLICITOR FOR THE RESPONDENT:	Terrence McMullan
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER	Ms Harris
INDEPENDENT CHILDREN'S LAWYER	Victoria Legal Aid

Orders

1. That the mother’s applications to obtain Australian passports for the children B born … 1998 and C born … 2000 to remove them from the Commonwealth of Australia, and to have the Watch List order of 28 August 2004 discharged, are all dismissed.

2. That the mother is hereby restrained by herself, her servants or agents from obtaining or attempting to obtain Country D passports for the children.

3. That my Reasons for Judgment given this day shall be transcribed, retained on the Court file and a copy provided to each party.

IT IS NOTED that publication of this judgment under the pseudonym Coghlan & Coghlan 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 MELBOURNE

FILE NUMBER:  MLC 10100 of 2009

Ms Coghlan

Applicant

And

Mr Coghlan

Respondent

REASONS FOR JUDGMENT

1. Mr and Mrs Coghlan agreed on orders for their two sons, B, 13, and C, 11, on 28 June 2011.  The essence of those orders was for the parents to retain equal shared parental responsibility for the children, and for the children to live half time in each home.  One issue remained: whether an existing Watch List order – in place in relation to the children for some years – could be lifted, and whether the children could obtain passports and then travel with their mother out of Australia. 

2. Mrs Coghlan was born in Country D.  She is now aged 46.  She came to Australia in 1996, aged 31.  Accordingly, she has lived here for the past 15 years.  She has retained her Country D citizenship. 

3. Mr Coghlan, an Australian citizen, is aged 47.  He and Mrs Coghlan lived together from 1996, married in 1997, separated in July 2004 and divorced in 2005. 

4. Mrs Coghlan says that she wants to take the children to Country D for about a month, to visit her elderly parents who are not in good health.  Mr Coghlan is opposed to that, saying that he is concerned that she will keep the children permanently in Country D, a country that is not a signatory to the Hague Convention and has local laws favouring Country D citizens and mothers.  He says he would not be able to have Australian orders enforced in Country D.  He says the mother has no significant ties to Australia, and until very late in the case, she offered no security (and then inadequate security) so that he fears he would not see his boys again. 

5. The ICL on balance agrees with the father, that the children should not be removed from Australia, at least until Country D becomes a signatory to the Convention. 

1. The mother relies upon her Initiating Application filed 12 November 2009 and her affidavit filed 24 August 2011.  She also filed a Summary of Argument on 6 September 2011.  The father relies upon his response filed 7 December 2009 and his affidavit filed on 24 August 2011.  He also has an outline of case filed 8 September 2011.  The ICL filed a thorough and helpful Outline of Case on 7 September this year. 

2. In deciding a particular parenting order, it is the children’s best interests that must be my primary consideration under s 60CA of the Family Law Act.  I assess best interests in terms of the considerations set out in the legislation at s 60CC(2) and (3).  I shall return to the detail below. 

3. Those provisions are set against a backdrop of the objects of the Act, which include ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives (s 60B(1)), and the principles underlying those objects, including that children have the right to know and be cared for by both their parents, and to spend time on a regular basis with both of them.  The children also have a right to enjoy their culture, including the right to enjoy it with other people who share that culture (s 60B(2)). 

4. In Line & Line (1997) FLC 92-729, the Full Court considered a father’s appeal against an order permitting the mother to travel with the children to the United States, with the imposition of a bond of $3000. The Full Court found that the bond was insufficient and, importantly for today’s purposes, set out the matters to be considered when determining the appropriate level of a security. The Full Court held that a trial Judge should have regard to the purpose of the security, namely, to provide a sum which will realistically entice the person removing the child to return, and to provide a sum to adequately allow the party left in Australia to take action in Australia and/or overseas in an endeavour to obtain the return of the children.

5. The Full Court said that the degree of risk that the departing parent, once permitted to leave Australia will choose not to return, despite assurances to the contrary, was at the heart of the inquiry.  In terms of that inquiry the matters to be assessed include the existence or otherwise of continuing ties between the departing parent and Australia, for example, the ownership of real estate, business interests and the residence of close family and friends in Australia;  the existence of and the strength of possible motives not to return, including the existence and level of conflict between the parents, particularly on child-related matters;  and the existence of and strength of possible motives to remain in the other country, for example, ownership of real estate, business interests, and residence of close family and friends in that country.

6. The Full Court also set out the consideration of whether or not the other country is a signatory to the Hague Convention, and also the financial circumstances of both parties – a consideration relevatn both to the hardship faced by the parent in terms of any security required of him or her, and the hardship for the remaining parent if too low a security is fixed. 

7. I need to consider as a primary consideration the benefit to the children of a meaningful relationship with both of their parents.  It is, as I said, a primary consideration in this case, and I shall return to it from that perspective.  The risk of the children being kept away from their father is at the heart of the consideration.  As to the other primary consideration, that is the risks to the children of abuse, there is no suggestion of that in this case from either parent. 

8. I am going to turn first to what are referred to as the “additional considerations” in the Act, and I need only refer to the ones that are relevant to this limited issue. 

9. First, there is the children’s views.  The only evidence really was of the mother in the witness box saying that the children want to be able to travel to Country D.  They are 13 and 11.  Their views are untested, though I am quite able to accept that they probably welcome the prospect of travelling to Country D.

10. I need to look at the nature of the children’s relationship with each parent and with their grandparents.  It seems that the children have a strong and excellent relationship with both parents, living, as they do, equally with each of them. 

11. The mother says that they have a good relationship with the maternal grandparents and aunt in Country D.  Those relatives have been visiting Australia every two years, staying for extended periods, and they apparently stay in touch with the boys through long telephone calls and an exchange of cards and photographs.  There is no question that in an ideal world, the boys would be free to travel to advance those relationships face to face with their maternal relatives in Country D. 

12. I need to look at the willingness and ability of each parent to encourage the boys’ relationship with the other parent.  There has been no suggestion that the father has shown unwillingness or inability to do that.  The father has suggested that the mother has not been prepared to encourage his relationship with the children.  He was not cross-examined, but still, it is fair for me to take into account that the mother did agree in June this year to orders for shared care.  There is no suggestion that those orders have not been working in the short period since then, and although in a previous affidavit it seems that she did not envisage make up time for the father when she was suggesting a long trip overseas between herself and the children, in the witness box today, she has now agreed that there should be make up time if she is permitted to take the children away.  I cannot, on the evidence before me, make a finding that Mrs Coghlan is unwilling to advance his relationship as such. 

13. I need to look at the likely effect of changes in the circumstances for the boys, including separation from a parent or grandparent.  The children have always experienced and coped with separation from their maternal grandparents.  If they had to be separated from their father, however, I would expect the effect to be profound.  He is one of their primary carers.  They are naturally close to him, as they are to their mother.  It is likely to be an emotional and psychological calamity for them to be separated from one of their parents for other than a short period. 

14. I need to look at the practical difficulty and expense of the children spending time with each parent.  At present, there is no impediment.  If the children were to be retained in Country D, the impediments would be very significant.  This consideration falls well within the ambit of what risks there would be to the children if they are taken to Country D by their mother, and so I will return to that. 

15. I need to look at the capacity of the parents to provide for the children’s needs.  There is no suggestion that either parent lacks that capacity.  Indeed, the current arrangement gives the boys the benefit of each parent’s good but different contributions. 

16. I need to look at the children’s culture, and this is an important consideration in this case.  They are half Country D by birth.  It is apparent that between their mother’s efforts, her family’s visits to Australia, and the regular contact that she has enabled them to maintain with her family, they do speak Country D, if not fluently or in a sophisticated way, at least in a basic but sufficient way to be able to manage long telephone calls with their grandparents, and they are apparently well aware of their Country D culture.  There is no question that being permitted to experience that culture in the home of their grandparents and in the country of their mother’s birth would be the best way for their immersion in it and appreciation of it. 

17. So with those considerations in mind, I return to the pressing primary consideration of the children’s relationship with their father.  No one disagrees that it is meaningful.  It is a question, though, as to whether there is an unacceptable risk of it being interrupted if the mother were to take the children to Country D.  I am satisfied that the risk is unacceptable.  I accept the ICL and the father’s submissions in that regard, and I can summarise my concerns.  First, Country D is not a signatory to the Hague Convention.  It proposes it will be, but until it is, that is insufficient comfort for current purposes.  It is the Convention and the domestic legislation to support it that provides the best assurance that the risk of a child being retained in that country is very significantly reduced. 

18. The father’s concerns as to his rights otherwise in Country D as an Australian citizen, with only Australian orders, and with the mother and the children still being Country D citizens, seems to be at least reasonable, although I cannot make definitive findings about Country D law as such.  The mother did not dispute the father’s account of how difficult it would be for him to retrieve the boys under Country D law, however. 

19. The mother’s evidence about the proposed travel was another aspect of concern to me.  Her evidence was scant.  It is still not clear when she would propose to travel.  She had been vague as to the length of the proposed trip.  Today she says it would be for three to four weeks.  She has previously sworn that the trip she proposed was for many months.  Her attempt to explain the difference between the previous version and the current version was underwhelming, and could not help but reinforce concerns about her plans, even though today at the eleventh hour in evidence she professed a preparedness to tell the father every detail of the proposed trip and to give him make up time, which was contrary to her previous proposal. 

20. I was concerned too by the mother’s evidence in relation to her parents’ health.  The maternal grandmother is aged 69 and the maternal grandfather 72.  As I observed in the course of the case, their age in itself is certainly not a barrier to their travel to Australia.  The maternal grandmother was diagnosed with breast cancer in 2009.  The evidence in relation to that is minimal.  A doctor’s certificate has been produced today.  There is no evidence of any difficulty in her prognosis and no evidence that she is incapable of independent travel.  The maternal grandfather suffered stomach cancer in May this year.  Again, the only independent evidence of it was produced by way of a medical certificate this morning, and again there was no evidence as to his capacity to travel. 

21. Today in the witness box the mother says that her father is to undergo serious heart surgery on Monday that would see him recuperating for some time, but there is otherwise no independent evidence at all about that.  If it is accurate, it could well stop the grandparents travelling for some time.  It is hard for me to guess about that, and at the same time, it could raise the spectre that there would be additional pressure for the mother to stay in Country D, to assist her sister to care for their parents if the health situation is as serious as the mother seems to be suggesting.  It is really hard to make a clear finding about that on the evidence before me. 

22. I do note, however, that when I asked Mrs Coghlan if she would travel alone without the children if she is not permitted to take them, she said that she would, maybe, in February 2012.  She said her fiancé was too busy to travel until then.  I must say that her answer suggested to me that her fears in relation to her parents’ current health might not be as pressing as she had suggested. 

23. There were other aspects of the mother’s evidence that concerned me.  I was concerned that paragraph 14 of her affidavit was misleading.  It suggested that the children had only Australian citizenship.  Because there was some possible room for ambiguity, I was keen to pursue that with Mrs Coghlan to give her the opportunity to explain it.  Her answers as to why she had omitted a reference to the children also retaining Country D citizenship did not provide me with significant comfort. 

24. She claims otherwise to be entrenched in work in Australia support services, saying that she has worked in that capacity since 2007.  She produced no independent material about it.  Her evidence that she was entrenched in that work was brought into some question when it was put to her by counsel for the father that she had complained in a letter, I think in 2009, that she found the work demeaning, and in fact wanted to return to the career she had in Country D as a professional.

25. Although in the witness box Mrs Coghlan said that she bought a house last year, there was no other evidence about it.  She said it was purchased for $260,000 and that she had an equity of $50,000, borrowing the rest of the purchase price from the bank.  Today, not having given any indication of this previously, she offered the home as guarantee.  It was impossible to tell on that scant evidence whether that was a useful guarantee or not.  Without current evidence of its value, and a precise statement of its mortgage, it is impossible to even calculate its equity, although I suppose I can take judicial notice of the economy struggling and land values dropping.  Rather than guessing at the possible equity in the property as of today, it is proper that I simply say that I cannot find what equity there is in the property with any certainty on that very brief evidence. 

26. Mrs Coghlan says that she is engaged to be married in Australia.  In her affidavit she did not even name her fiancé.  She did name him today.  He has not sworn an affidavit.  He was not present at Court.  There was no evidence of wedding details or dates.  She told me he is a self-employed building inspector.  There was no discussion or consideration as to whether he might assist her with a guarantee for this trip.  

27. It is for the combination of these reasons that I regard the risks too high in this case that the children’s very significant relationship with their father could be interrupted if their mother took them to Country D to be with her sister and her aging parents, who have had at least some very genuine health issues, and to a jurisdiction from which the father, technician by trade, would not have the might or the muscle legally or financially to retrieve them.  Also, for the reasons I have given, I am not satisfied that the guarantee proposed at the last moment by the mother would be sufficient to reduce those risks to the children in any adequate way. 

28. In the event that Country D adopts the Hague Convention and the domestic law to support it, that would be a very significant change in the circumstances.

ORDERS DELIVERED

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 9 September 2011.

Associate:

Date:  9 September 2011