Coumans and Mertens
[2018] FCCA 3947
•20 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COUMANS & MERTENS | [2018] FCCA 3947 |
| Catchwords: FAMILY LAW – Parenting – overseas travel. |
| Legislation: Family Law Act 1975 (Cth), s.60CC |
| Cases cited: Goode & Goode [2006] FamCA 1346,(2006) FLC 93-286,(2007) 36 Fam LR 422 |
| Applicant: | MR COUMANS |
| Respondent: | MS MERTENS |
| File Number: | SYC 8001 of 2018 |
| Judgment of: | Judge B Smith |
| Hearing date: | 20 December 2018 |
| Date of Last Submission: | 20 December 2018 |
| Delivered at: | Sydney |
| Delivered on: | 20 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Wong |
| Solicitors for the Applicant: | Grover Law |
| Solicitors for the Respondent: | Mr Wilson - Reid Family Lawyers |
ORDERS
The Application in a Case filed on 19 December 2018 is refused.
That until further order, each party, Mr Coumans born …1983 and Ms Mertens born …1983, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said Child, [X] born …2013 (female), from the Commonwealth of Australia until further order of this Court;
AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said Child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the Child’s name on the Watchlist until the Court orders its removal.
The respondent, Ms Mertens born …1983, is to immediately deliver any Australian and Country A passports including expired passports of the child, [X] born …2013, to her solicitor, Mr Wilson of Reid Family Lawyers, and they are to be held by him on his undertaking not to return the passports to the respondent without further Order of the Court.
Cost of this application in are reserved including the question of whether or not, and if so to what extent, the applicant should be liable to share in any loss in respect of travel costs.
Pursuant to section 11F of the Family Law Act 1975 the parties attend a Child Dispute Conference with a Family Consultant in this Registry on 8 February 2019 at 10AM AND the parties are advised that if a person fails to comply with this order or any instruction the Consultant gives to the person the Consultant must report the failure to the Court.
NOTES
The matter remains listed on 16 January 2019 at 9:30am.
Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Coumans & Mertens is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 8001 of 2018
| MR COUMANS |
Applicant
And
| MS MERTENS |
Respondent
REASONS FOR JUDGMENT
This is an oral decision in an interim parenting matter pursuant to the Family Law Act 1975 (‘the Act’). I refer to the short form reasons for decisions provisions of s.69ZL of the Act.
The matter relates to the child [X] born on …2013, who is now just over five years of age. This is, in effect, a first return of the matter on an urgent basis. It has been referred to me at 3pm on 20 December 2018 to consider solely the question of overseas travel for the child, which is coming up on 28 December 2018. Nevertheless, I need to refer to some of the background material in order to consider the single issue which I am considering today.
The matter commenced by an initiating application filed by the father on 13 December 2018. One of those orders sought included that the child be placed on the watch list, although I understand that may have occurred administratively as well, which is why we are here. The father also sought equal shared parental responsibility, and he also seeks a variety of parenting orders. I note that when the father’s application was received, it was initially listed before me for 16 January 2018. The father has filed a notice of risk of the same date, stating:
I’m of the opinion that Ms Mertens’ isolation and refusal to allow [X] to spend time with me is alienating to the extent that when I do speak to [X] on the telephone, Ms Mertens is in the background advising [X] what to say and [X] often seeks to have Ms Mertens answer the questions for her.
A response was filed by the mother on 19 December 2018. Her response sought that the matter listed before the Court for hearing before Friday, 21 December 2018, abridgment of service, and the essence, at order 5, is that the mother be permitted to remove the child from the Commonwealth of Australia from 28 December 2018 to 27 January 2019 inclusive to travel to Country A. By order 6, “It is requested that the Australian Federal Police give effect to order 1” which I think should be order 5 “by removing the child’s name from the Family Law Watch List between” those dates, and also orders that pending further order, the child reside with the mother, and orders in respect of supervised time.
Now, the mother’s notice of risk, which summarises the essential components set out in her affidavit, which I will come to, was filed with the response and said:
The father has shown disregard to the child’s safety by exposing her to family violence in previous relationships and has not acknowledged that this has occurred.
The father was involved in a motor vehicle accident with the child and did not provide or make arrangements for appropriate medical care; nor did he report the child’s involvement to any authorities.
The father also allows the child to be exposed to family violence between the paternal uncle and his former de facto partner, involving significant and ongoing verbal arguments.
The mother’s application in a case was filed with the response on 19 December 2018 in order to trigger the listing before me on an urgent basis today, which was done after review by the Registry and in consultation with the current duty judge. It was determined that I should consider the matter, given the travel has been paid for on 28 December 2018. I do note that in the application in a case the orders sought, in effect, reflect all of the orders sought in the response. I am however, only considering today the question of travel as an urgent matter, given the state of the lists, and that I still have more matters to deal with tomorrow around urgent Christmas issues. I do not have time to deal with all of these other matters, nor should they take priority merely because there is a travel issue.
I have evidence from the father in his affidavit of 13 December 2018 and of the mother in her affidavit of 19 December 2018. I also have the benefit of the respondent mother’s case outline prepared by her solicitor, Mr Wilson, provided to the Court after argument had closed, but with the consent of the other party, and I note that it covers that which was discussed before the court during submissions. I also have exhibit 1 tendered without objection, which is the Annual Report on International Child Abduction by the Department of State of the United States of America to, I think, the USA Senate, and that is the 2018 version. I note that I have previously seen prior versions.
I was taken to only part 10. That, as I understand it, is in respect of Country A, and the gravamen of that report is that Country A is a country which might be considered to be “Hague light”, in that whilst they are a signatory, the reality is that the practical difficulties mean that unlike a child who is in England or the United States, who one would expect to be returned forthwith by any judicial officer of those countries, the reality, for a variety of reasons to do with the structure of that country and issues there, is that it could take many years and very, very large sums of money to have any change of returning a child living in that country who was living with a person who did not wish the child to be returned.
I also have material from the father which is not particularly helpful, which is exhibit 2, about refunds from Emirates Airlines. What that might mean, I do not know, but I suspect that was really an issue for the mother to tender evidence on rather than the father if she was going to show that she was to lose money.
The affidavits contain a large amount of material, which I don’t propose to go through, as I note that this being an interim parenting application is subject to all the usual procedures and issues and potentially the process required in Goode & Goode, but I also know what was said in Banks & Banks, which is that in an interim application in a duty list with short time available where the issues are clearly articulated by the parties, one should not spend a lot of time looking at other matters which cannot be determined and which are not relevant to the specific issue the court is required to determine.
I will just note the brief history is that the mother is a Nationality and an Australian citizen, and the child is an Australian citizen and has an expired Country A passport, which I take to mean it is likely that she is a Country A citizen or entitled through her mother, who was born in Country A, to Country A citizenship. That is an issue that lies at the heart of this case. The father is an Australian citizen. The parties had a relationship between …2010 and June 2014. Their daughter [X] was born in 2013.
The parties separated in 2014, and between separation, and about July to October of this year, the child lived with the mother. The child had what one might describe as liberal access or liberal time with the father, and the parties managed to conduct themselves in a very sensible and adult fashion, which focused on [X]’s wellbeing, her protection, and the benefit of having a relationship with her father.
I note that the mother has travelled extensively with [X] previously, with the father’s permission, including to Country A on one occasion in 2017. Indeed at the start of 2018 the father agreed that [X] could travel with the mother to Country A. That was, of course, in the context of a then high-functioning, low-conflict, child-focused parental relationship.
Since sometime in July and certainly by September of 2018, the parties have gone from that position to what one might describe as a relatively dramatic breakdown of the relationship between the father and the mother. The starting point appears to be a motor vehicle accident which the father was involved in while [X] was in his care, which occurred on 23 September of 2018. The mother says that she’s concerned that he was drunk at the time. He did not provide a blood alcohol sample. This is set out at paragraphs 35 and 36 of her affidavit.
I refer to what I was told in the submissions and to what is contained in the mother’s private AVO, where she says that the father was drunk with the child in the car, did not get the child proper medical attention, and hid the events from her. That is denied by the father, and this is, of course, an interim application, and I have no way of knowing what the truth of that matter is, but there is no doubt that the truth is that as a consequence of that event the relationship declined.
We then had a very unfortunate compounding event when it appears that the father tried to see the mother on 2 October 2018. He wanted to see the child. Unfortunately he was intoxicated and showed very poor judgment. Having arrived intoxicated at the mother’s house, she called the police, who attended, and then for reasons which are hard to understand, he got in his car and tried to drive away, and was forthwith arrested by attending police for high range prescribed concentration of alcohol.
The mother says that since this incident and the accident, [X] has been very reluctant to speak to her father. I do not know the truth of that or what the perception of this child is. But what I do know is that there is now a situation of high conflict between the parents, and it appears little or no trust.
The mother had arranged to travel to Country A with [X] and her partner, Mr A, a medical professional. Mr A, I’m informed is a Country B citizen training to become a medical professional in Australia but not an Australian citizen. I was not told whether he had residency.
The real issue then becomes clear. Given the significant breakdown in the relationship the father deposes at paragraph 4 of his affidavit that:
I hold fears that Ms Mertens intends on taking [X] to Country A for the 2018 Christmas/New Year Holiday without my permission.
The affidavit does not specifically say the issue or fear is she will not return. However, having read the rest of the affidavit, and based upon what I was told from the bar table, I accept that he does, in fact, say that he fears that she will not return. I would not at this stage find against that being a genuinely held or genuinely expressed belief just because of the poor articulation of paragraph 4 of that affidavit.
The mother, for her part, in her affidavit, addresses the question of ties to the community at paragraphs 55 to 59.
I will summarise the main points, she says that she has a lease with her partner, who is a medical professional, on their apartment in Suburb B where she has lived for three years, and the lease expires in May 2019. The father says in terms of that as a tie to the community, that if you walk away from a lease by not returning to the country, what is anyone going to do about it? The reality of someone trying to sue you for breaching a lease if you are living in Country A or Country B means there is no real risk there.
The mother does not own any real property. Nor do I know if her current partner, who I should also say is not her husband there being no marriage, owns any real property. Real property commitments obviously are a very significant question, because unlike a lease, real property ties you to a place since the Court or another party can take control of those, and the financial risks of abandoning real property is very real.
The mother says that she is working and qualifying in employment to complete her qualification and has done so for over seven years, so she has friends in the employment community, so she has ties to the community.
The mother notes that her partner, although a Country B citizen, is studying in Australia. He will receive his qualifications in 15 months. She says if he were to leave Australia, he would need a further five years to achieve an equivalent qualification. I do not know if that is correct or not. I do not see how she could say that as she is not an expert in the question of the transferability of qualifications or training programs.
I also have the issue that the medical professional who is her partner is not on affidavit. There is here a potential Jones & Dunkel issue, although I note, of course, that we’re dealing with this on a very urgent basis, but nevertheless, the medical professional might have said something which would have assisted her case. She says she works for her partner, the medical professional, so has no other employment to which she is attached.
In summary, the father says, as I apprehend it, we now have a situation of high conflict where he thinks the mother does not want him to have contact with the child. There is a dispute about that latter point, but that is how he sees the situation. She is a Country A citizen. The child is or has potential to be a Country A citizen. She has no real property tying her to the jurisdiction. A lease is basically worthless in terms of looking at being tied to the jurisdiction.
She does have a partner, but he is actually a Country B citizen, not Australian. The nature of any ties he has to the jurisdiction are unknown, but not being a citizen, and I am not even sure if he is a permanent resident or on what basis he is here or if his visa is only for the purpose of study, I just do not know. She has one brother in Adelaide, which, as another judge said in one of the authorities I was referred to, one brother in a city 1000 kilometres away is a tenuous connection to the jurisdiction. The father says I cannot be satisfied that that ties her to the jurisdiction.
The essence of the father’s concerns, whether they are valid or not in terms of what the mother intends, the essence of his concerns are that she has very little connection with the jurisdiction that would stop her from taking the child to Country A and saying, in effect, this is all too hard. Why should I deal with him? Why should I deal with this? I can just stay in Country A and so can the child. I have family here. I am a citizen here. I am not giving up a job. I am not giving up real property. I am not giving up anything.
I accept the point is made that the mother’s connection to this jurisdiction is tenuous.
An offer was made in response to the Court’s question of a bond of $20,000, and that is a commonly proffered figure, although the point was I think well made by counsel for the father that when one looks at perhaps England, that might be a figure which creates a situation of risk and loss, and where the money might be sufficient, at least to some extent, to start proceedings, but in Country A, given the fact that I will give some weight to exhibit 1, and just I think a common sense understanding that the Country A system is unlikely to be one which is easily accessible, that that bond does not provide sufficient weight.
The applicant is not in a position to put up more, as I understand it. She does not have funds. There is also a question of whether a bond put up by her partner is necessarily something that would concern her if he was to lose it, because I really do not know much about him or their relationship. So that is another problem.
The mother, of course, says that the child is enrolled in Suburb B Public School, and she has every intention to return to Australia after her travels, and that she loves Australia, in effect, and that is good to hear, and it may well be that that is her intention. Obviously as a judge of this Court I am biased and cannot imagine why anyone would want to live anywhere else, but the simple reality is that people often do, for a variety of very good reasons, and that question must be addressed having consideration to the mother’s background.
In terms of the loss of tickets, there is no evidence she cannot get a refund. I am not satisfied necessarily that exhibit 2 establishes that she can get a refund, but it was really more of a matter for the mother than for the father to address on an evidentiary basis.
The parties have addressed the s60CC factors, which are relevant, but the authorities I was taken to, which are most relevant, Line & Line, Jarrard & Jarrard and Cadena & Beltran just set out what I consider to be well-established principles. The Courts have said when reviewing matters, a trial Judge needs to focus on the issues as the parties have defined them, and there has been no argument before me about capacity, parenting capacity or other matters, not really, relevant to this travel issue.
I do not see any disadvantage to the child in going to Country A. It is good to stay in touch with extended relatives and also family, but I do not see that it is such an important thing or that the loss of one trip, at this time of high conflict, would cause any damage to the child or would be a negative thing. The child may know she is going to Country A, but at the age of five, if she goes to a waterpark instead, at the end of the day, there probably will not be much difference in her perception.
The decisions in such matters are very imprecise. They are necessarily impressionistic and have to be dealt with quickly. If there was more connections with this jurisdiction, or if travel was to a country which I was more satisfied would be more likely to easily, quickly and cheaply return the child, then it could be a different case. But I am satisfied that given the high conflict in this case it is not in the child’s best interests at this time to be allowed to travel from the jurisdiction when emotions are high, and I think that although doubtless saying no will create conflict, I think the stress and concern of allowing the child to travel will create even more conflict.
On that basis, weighing all of the factors, without making any finding, as I do not believe I am required to, about whether or not the mother intends to return the child to the jurisdiction, it seems to me, on balance, that the most appropriate course of action at the moment is to refuse the mother’s application to allow the child to travel overseas.
I understand the child is administratively on the watch list but nevertheless I will make orders in accordance with the father’s initiating application. I make order 1, which is I make the usual watch list order. I make the usual order that the child not be removed from the Commonwealth of Australia until further order of this Court. I make an order in the standard form that the child be placed on the watch list.
In terms of the passports, I will order either that they be held by the registrar of this Court, that includes the child’s Country A and Australian passports, past and present, or, the mother’s solicitor can hold them.
I note Mr Wilson’s undertaking that he will hold the passports and will order the solicitor for the mother is to hold the child’s Australian and Country A passports, including any expired Country A passport.
I will reserve the question of whether or not and if so to what extent the applicant father should be liable to share in any loss in respect of travel costs. That is something I think I will consider at a much later date when I have a much better idea of what has gone on and whether anyone has been unreasonable or not. I reserve the costs of this application generally. I will confirm the interim hearing on 16 January 2018 relating to other matters, and I list the matter for Child Dispute Conference on 8 February 2018 at 10 am. I make the usual orders in that regard.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge B Smith
Date: 25 January 2019
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Costs
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Jurisdiction
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Remedies
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Procedural Fairness
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