COONEY & MARTINEZ

[2016] FamCA 1021

FAMILY COURT OF AUSTRALIA

COONEY & MARTINEZ [2016] FamCA 1021

FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Overseas travel – Where the father seeks the discharge of an order made by consent allowing the mother to travel to South America with the children – Whether there has been a change in circumstances which increases the risk of non-return – Where the mother has resigned from her employment and moved out of her rental accommodation – Where the Court finds it appropriate for the security to be paid by the mother to be increased to $20 000 – Order varied.

Family Law Act 1975 (Cth) ss 60CA, 60CC

Line & Line (1997) FLC 92-729
Sukova & Allen [2011] FamCA 340

APPLICANT: Mr Cooney

RESPONDENT: Ms Martinez

FILE NUMBER: SYC 1906 of 2016

DATE DELIVERED: 28 November 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 16 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Beck

SOLICITOR FOR THE APPLICANT: McGirr Lawyers

COUNSEL FOR THE RESPONDENT: Mr Dura

SOLICITOR FOR THE RESPONDENT: York Law Family Law Specialists

Orders pending further order

1. Order 4.4 of the Consent Orders made on 18 May 2016 is varied to increase the security to be paid by the mother from the sum of $10 000 to the sum of $20 000.

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 Cooney & Martinez 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 1906  of 2016

Mr Cooney

Applicant

And

Ms Martinez

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter concerns an application by the father to vary interim parenting orders made by consent on 18 May 2016 (“the Consent Orders”) in respect to the parties’ twins B and C, born in 2014, who are currently aged 2. Specifically, the father seeks an order discharging Order 4 of the Consent Orders which provides:

   4. That the Father’s time be suspended in a period of 6 weeks over Christmas between December 2016/January 2017 to December 2018/January 2019 to enable the Mother to take the children to [South America] on a holiday and in relation to the same:

   4.1 The Mother shall notify the Father 8 weeks prior to the impending departure of the dates that she and the children will leave Australia and return back to Australia by providing to the Father a travel itinerary setting out the above;

   4.2 The Mother provide the Father with a telephone number where the children can be contacted during their holiday in [South America];

   4.3 The Mother facilitate the children having Skype communication with the Father 2 days per week whilst the children are on holiday in [South America];

   4.4 10 days prior to leaving Australia with the children, the Mother deposit in the Father’s solicitors trust account being the trust account of McGirr Lawyers (but if McGirr Lawyers are no longer acting for the Father, then the Mother is to deposit into her solicitor’s trust account the sum of $10,000 as security for the return of the children back to Australia and in relation to the said sum:

   4.4.1 The said sum is to be refunded to the children on the solicitors sighting the children’s passports shown to them by the Mother; or

   4.4.2 If the Mother does not return the children back to Australia within 7 days from the date stipulated in the itinerary provided by the [Mother], then the said sum be released to the Father on him providing the solicitor with a sworn affidavit setting out that the children have been returned to Australia as per the itinerary for the sole purpose of him using that sum to travel to [South America] to bring the children back to Australia.

   4.5 In the event the needs arises for the Mother to sign any documents, travel documents, passports or any other documents to enable the children to travel to [South America] as per this Order or whilst the children are in [South America] during the 6 week period referred to herein, then the Mother, and not otherwise, is to have sole parental responsibility in relation to these matters.

2. The significance of discharging Order 4 would be that the mother would not be permitted to undertake overseas travel with the children without further order of the Court.

Contentions

1. The father contends that since the Consent Orders were made on 18 May 2016, there has been a change in circumstances such that he is now concerned that the mother may not return from a planned trip to South America with the children. The trip has been arranged for 6 December 2016 until 17 January 2017.

2. The father contends that those changed circumstances reduce the strength of the mother’s ties with Australia and increase the likelihood of her not returning with the children from South America. The father identifies those changed circumstances as follows:

   ·The mother has moved from the property she was renting on the Northern Beaches, which is in close proximity to the father, to Suburb D;

   ·The mother has removed the children from their day care on the Northern Beaches and has not re-enrolled them into day care in or near Suburb D;

   ·The mother has resigned from her employment;

   ·As result of the resolution of the property proceedings between the parties, the mother received a property settlement of $95 000; and

   ·The mother’s family and friends all reside in South America.

3. The mother contends that the reason she moved from the Northern Beaches to Suburb D was that it was not financially viable for her to continue working full time and meeting the cost of childcare as well as rent. As a result, the mother deposed that she accepted an offer from a close friend to live rent free in that friend’s Suburb D apartment.

4. The mother also asserted that her employment on the Northern Beaches resulted in her having to travel up to one and a half hours each way to and from work.

5. The mother asserted that, at the time the father agreed to enter into the Consent Orders, including Order 4, he was well aware that the wife’s family resided in South America and that she was to receive a distribution of $95 000 as a result of the finalisation of the parties’ property proceedings. It was further noted that, at the time the Consent Orders were made, the mother did not own any property and was living in in rental accommodation. The fact that she is now residing with a friend, it was submitted, should not be considered as a change in circumstances that increases the risk that she would not return to Australia with the children.

6. The mother also submitted that the Consent Orders were not made subject to any condition that she remain in her then employment. It was submitted that the fact that, subsequently, the mother has since decided to resign from her employment should not be regarded as a material change in circumstances to those which existed in May 2016.

7. Finally, the mother argued that the Court should have regard to the fact that she has previously travelled to South America with the children and has returned to Australia. This included, it was noted, the mother travelling during a period when the parties were experiencing difficulties with their relationship.

8. In reply, the father argued that the mother’s assertion that she is not paying rent at the Suburb D apartment is inconsistent with a letter from her solicitors to the father’s solicitors indicating to the contrary. It was further submitted that the mother has not accurately represented the travelling time between her place of employment on the Northern Beaches and the place where she resided on the Northern Beaches which, it was submitted, was in the order of 35 to 40 minutes by bus rather than one and a half hours.

9. These inconsistencies, the father argued, justify his concerns about the veracity of the reasons the mother has provided for changing residences and resigning from her employment.

10. In the circumstances, the father submitted that Order 4 of the Consent Orders should be discharged to prevent the mother from travelling overseas with the children.

11. The mother submitted that the reasons advanced by the father for seeking a discharge of the Consent Orders are not valid and his application is motivated by a desire on the part of the father to continue to exercise control over the mother.

Consideration

1. In deciding this matter, the Court is required to have regard to the best interests of the child as mandated by s 60CA of the Family Law Act 1975 (Cth) (“the Act”). Section 60CC of the Act sets out a number of factors that the Court is required to consider in determining what is in a child’s best interests.

2. The Court has had regard to those factors generally and has placed greatest weight on s 60CC(2)(a), which relevantly provides that a primary consideration for the Court is “the benefit to the child of having a meaningful relationship with both of the child's parents”. Clearly, if the children were not to return to Australia, the children's ability to maintain a meaningful relationship with the father would be adversely affected.

3. Section 60CC(3) also requires the Court to have regard to the nature of the relationship of the child with “other persons (including any grandparent or other relative of the child” (per s 60CC(3)(b)(ii)). It was not disputed that the children’s maternal extended family all reside in South America. Accordingly, if the children are to have a relationship with their maternal extended family, it will be necessary for them to be able to travel to South America or for their relatives to visit them in Australia.

4. Also of relevance are paragraphs (d) and (e) of s 60CC(3) which requires the Court to have regard to the “likely effect of any changes in the child's circumstances”, including separation from either of their parents and any “practical difficulty and expense of a child spending time with and communicating with a parent”. Again, if the children are not returned to Australia by the mother, this would be a significant change in the children's lives which would involve separation from their father and would create circumstances where it would be very difficult for the children to spend time with and communicate with the father.

5. Finally, s 60CC(3)(g) requires the Court to consider the background of the child including their lifestyle, culture and traditions and that of either of the child’s parents. In this matter the mother was born in South America and, as noted, the children’s maternal extended family continue to reside in South America. It is important that the children have the opportunity of maintaining a connection with that culture including by having the opportunity to travel with the mother to South America.

6. Having regard to these considerations, I find that it would be in the children’s best interests for the children to have the opportunity to travel to South America for a holiday in order to spend time with members of their maternal extended family and experience their culture and traditions. Accordingly, I dismiss the husband’s application to discharge Order 4 of the Consent Orders.

7. In dismissing that application, however, the Court needs to have regard to the possible risk of the mother not returning to Australia with the children and take steps to ameliorate that risk.

8. The mother denies that she will not return to Australia. However, the test to be applied, in considering whether there is a risk of non-return, is an objective test which requires an evaluation of the risk of non-return and the consequences if that occurs.

9. The Full Court in Line & Line (1997) FLC 92-729 set out the factors to consider in evaluating the risk of non-return.[1] They were said to include:

   (1)The existence or otherwise of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here);

   (2)The existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues);

   (3)The existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there); and

   (4)Whether the country of travel is a signatory to the Hague Convention.

   [1] at 83,846.

10. A significant factor in this matter is that the relevant country in South America is a party to the Convention on the Civil Aspects of International Child Abduction, signed at the Hague on 25 October 1980 (“the Hague Convention”). This would facilitate a recovery action if the mother did not return to Australia with the children in accordance with her representations to the Court. Nevertheless, the father is entitled to some comfort that the children will be returned.

11. In that context, the fact that the mother has, since the Consent Orders were made, resigned from her employment and changed her place of residence is of some concern to the Court and are factors to which I have had regard in assessing the level of risk that the mother will not return to Australia with the children.

12. On the other hand, the mother is entitled to recognition that she has previously travelled to South America in order to spend time with her family and has returned to Australia with the children. Also of relevance is the fact that Order 4 of the Consent Orders is comprehensive and includes a number of safeguards such as requiring the mother to notify the father of her travel itinerary and to ensure that the children are able to maintain electronic communication with the father during their travel.

13. Having considered the material presented to the Court, and noting that the mother has, since 18 May 2016, resigned from her employment, I am of the view that it is appropriate for the Court to vary Order 4 of the Consent Orders by increasing the sum of the security to be provided by the mother from $10 000 (set out in Order 4.4) to $20 000.

14. In determining that the amount of $20 000 is appropriate, I have again been guided by the principles set out in Line & Line (supra).  In that case, the Full Court said that the two fold purpose of such a security is to:

    (1)provide a sum which will realistically entice the person removing the children to return; and

    (2)provide a sum to adequately provision the party left in Australia to take action and proceedings in Australia and overseas in an endeavour to obtain the return of the children.[2]

    [2] at 83,846.

15. On the facts before it, the Full Court in Line & Line (supra) decided that a security of $20 000 was appropriate.

16. I have also had regard to the case of Sukova & Allen [2011] FamCA 340 where Cronin J indicated that any security imposed by the Court needed to strike a balance between providing sufficient comfort to the non-travelling parent but, at the same time, not be so high that it would make travel prohibitive.[3]

    [3] at [46].

17. In that context, the issue of the mother’s capacity to pay is relevant. The mother submitted that she would have the capacity to provide a security of only $15 000. However, it is of note that the mother recently received the sum of $95 000 as result of the finalisation of the parties’ property proceedings. Therefore, in all the circumstances, I am satisfied that the mother has the capacity to obtain funds to pay a security of $20 000, without precluding her from undertaking the overseas travel planned with the children.

18. For all of the above reasons, I therefore make the Orders as set out at the commencement of these Reasons for Judgment.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 28 November 2016.

Associate:

Date:  28 November 2016