Finn and Finn (No.2)
[2011] FMCAfam 1561
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FINN & FINN (No.2) | [2011] FMCAfam 1561 |
| FAMILY LAW – Parenting – interim hearing – whether child should be permitted to travel to (country omitted) with the mother for 3 weeks. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 65X, 65Y, 65Z, 68B, 68L Family Law Regulations 1984 |
| Goode & Goode (2006) FLC 93-286 Finn & Finn [2011] FMCAfam 1135 Keubler and Kuebler (1978) FLC 90-434 Line & Line (1996) 21 Fam LR 259 |
| Applicant: | MS FINN |
| Respondent: | MR FINN |
| File Number: | SYC 5733 of 2010 |
| Judgment of: | Monahan FM |
| Hearing date: | 17 October 2011 |
| Date of Last Submission: | 17 October 2011 |
| Delivered at: | Sydney |
| Delivered on: | 25 October 2011 |
REPRESENTATION
| Counsel for the Applicant: | Not applicable |
| Solicitors for the Applicant: | Drexler & Partners |
| Counsel for the Respondent: | Not applicable |
| Solicitors for the Respondent: | Belgrave Lawyers |
| Counsel for the Independent Children’s Lawyer: | Not applicable |
| Solicitors for the Independent Children’s Lawyer: | Peter Baker Solicitors |
ORDERS
All extant applications be adjourned to this Court on 21 December 2011 at 11:30am for mention (“the mention hearing”).
The parties attend a Conciliation Conference with a Registrar of the Family Court of Australia at the Sydney Registry on 22 November 2011 at 2:15pm AND the solicitors for each party send to the other and the Registrar at least seven (7) days before the Conciliation Conference copies of:
(a)a completed Conciliation Conference document;
(b)a market appraisal or valuation of any asset or financial resource, the value of which is in dispute and valuations of any superannuation interests;
(c)if there is a significant discrepancy between the market appraisals obtained by the parties, a single expert valuation of all relevant property;
(d)the actual terms of orders required to give effect to their settlement proposal;
(e)if applicable, a copy of any apprehended violence order or restraining order that is currently in force; and
(f)a written confirmation by each party or their solicitor that:
(i)all relevant documents have been exchanged between the parties; and
(ii)the superannuation trustee of any fund that may be the subject of a splitting order has been accorded procedural fairness
AND IN THE EVENT that the matter does not settle at the Conciliation Conference, further directions be given at the mention hearing and, in addition, where a party has not complied with subparagraphs (a) to (f) herein the Court may consider submissions with respect to costs.
The listing of this matter for mention on 16 November 2011 be vacated.
The Application in a case filed by the Respondent on 26 September 2011 be dismissed with no Order as to costs.
All existing Orders continue in full force and effect.
AND THE COURT NOTES THAT:
(A)The purpose of the mention hearing is to consider:
a.the results of the Conciliation Conference;
b.further directions, in the event that the parties remain in dispute;
c.the likely release date of the Family Report; and
d.whether two (2) days remains a viable estimate of the time required for the Final Hearing.
IT IS NOTED that publication of this judgment under the pseudonym Finn & Finn (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5733 of 2010
| MS FINN |
Applicant
And
| MR FINN |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons are being delivered orally and may be settled when time allows or otherwise upon request.
This decision arises from an Application in a Case filed on 28 September 2011 by MS FINN (“the mother”) against MR FINN (“the father”). The mother is the respondent to substantive parenting proceedings commenced by the father in 2010 and which are listed for final hearing commencing on 5 February 2012. The substantive proceedings and this Application in a Case relate to the parties’ child, X, born (omitted) 2010 (“X”, or “the child”).
In her Application in a Case the mother is seeking the following orders:
“1. The court directs the Australian Federal Police to remove the name X born (omitted) 2010 from the airport watch list.
2. The wife is at liberty to remove the child from the Commonwealth of Australia for a period of no more than eight weeks for the purposes of visiting her mother in (country omitted).
3. Subject to the wife travelling through countries for the purpose of transiting to (country omitted) the wife is otherwise restrained from staying and residing in or otherwise visiting other countries other than (country omitted).
4. The husband shall forthwith do all acts and things necessary to sign a passport application for X, born (omitted) 2010, and otherwise give all consents to enable the wife to obtain an Australian passport for X and for X to leave the Commonwealth of Australia to travel to (country omitted).
5. Leave be granted to serve short notice of this application.”
The mother’s Application in a Case is supported by her affidavit sworn on 12 August 2011 and filed on 29 August 2011. The mother was legally represented by Mr Thomas of counsel at the hearing of the Application in a Case which took place before me on 17 October 2011 (“the hearing”).
The father, in his Response to the Application in a Case filed on 17 October 2011, opposes the orders sought by the mother, and simply seeks the following order:
“That the child X, born (omitted) 2010, remain on the airport watch list.”
The father relies on his affidavit sworn and filed on 17 October 2011, being the date the matter was heard by me. The father was legally represented by Ms Algalele at the hearing.
By an order made me on 22 November 2010 an Independent Children’s Lawyer (“ICL”) was appointed pursuant to s.68L(2) of the Family Law Act 1975 (“the Act”) and Ms Baker appeared in that capacity at the hearing.
Background
I summarised the parties relevant background in paragraph 6 to 13 of my decision dated 15 August 2011.[1] That decision related to an Application in a Case filed by the father on 4 May 2011 seeking to spend unsupervised and additional time with X.
[1] Finn & Finn [2011] FMCAfam 1135.
By my orders made on 5 August 2011, X spends unsupervised time with the father as follows:
“(5)The child X, born (omitted) 2010, (“the child”) spend unsupervised time with the Applicant as follows:
(a)from 17 August 2011 until 17 September 2011:
(i)on Wednesdays from 2:00pm to 4:00pm;
(ii)on Saturdays from 2:00pm to 4:00pm;
(iii)on Sundays from 1:00pm to 4:00pm; and
(b)from 18 September 2011 and thereafter:
(i)on Wednesdays from 2:00pm to 5:00pm;
(ii)on Saturdays from 2:00pm to 5:00pm; and
(iii) on Sundays from 1:00pm to 4:00pm.
(6)For the purposes of paragraph five (5) herein, changeovers occur at such a place as may be agreed between the parties and, failing agreement, as follows:
(a)on Wednesdays and Saturdays, at (omitted) supermarket in (omitted), NSW; and
(b)on Sundays, at a venue agreed between the parties within 48 hours of the date of these Orders and, failing agreement, at a Railway Station located on the (omitted) lines between (omitted) and Central (inclusive) nominated by the Respondent within 72 hours of the date of these Orders.”
Of relevance to the Application in a Case now before me was Notation C to the orders made on 15 August 2011 which states:
“The Respondent advised the Court that she proposes to file an Application seeking Orders allowing her to travel with the child to (country omitted).”
At this point I should note that a family report has now been prepared in this matter by family consultant, Ms R, which was released to the parties on 23 June 2011.
Issues
The dispute which is the subject of this interim decision is solely related to the mother’s Application in a Case seeking an order that would allow her to travel to and from (country omitted) with the child and consequently seeking the removal of the airport watch list, at least for that period.
At the commencement of the hearing the mother confirmed, through her legal representative, that she was now only seeking to travel for a minimum three week period and that she was only seeking the lifting of the airport watch list order for the period of such travel. The father remained opposed nonetheless to the mother’s request and the ICL did not ultimately support the mother’s request.
Parties’ submissions
Mr Thomas commenced his submissions by summarising the issues for the Court as follows:
·does the mother represent a flight risk?
·what could the Court do to ensure that the mother return following her proposed trip to (country omitted)?
·if the mother were denied the opportunity to visit her ill mother in (country omitted) how is it likely to affect the proceedings in the long run?
Mr Thomas thereafter spent considerable time on the first two issues. In relation to the first issue, Mr Thomas submitted that the mother did not pose a flight risk and he asked the Court to accept the mother’s evidence in that regard.
In relation to the second issue, Mr Thomas submitted that the mother would have been offering, by way of security, her interest in the parties’ matrimonial property. The substantive proceedings now include orders for a property settlement. Mr Thomas said that the mother disputed the father’s assertion that there had been a property settlement effected between the parties, that is, without Court order. That said, it has now come to the mother’s notice that the father has now sold the former matrimonial home. The father asserts that he realised no financial benefit after payment of debts. The mother has questioned whether the father had done so to thwart her ability to put up her interests in the former matrimonial home and other matrimonial property as security for her proposed trip to (country omitted). The mother has no property of her own to put up as security and she is only in receipt of minimal child support in the sum of some $7 per week from the father, as well as Centrelink benefits.
Mr Thomas also asked the Court to note that the mother was proposing a direct trip to and from (country omitted) for family reasons only and could draw comfort from the fact that (country omitted) is a signatory to the Hague Convention on inter-country child abduction. I note, however, that no plane ticket, or at least reservation, was shown to the Court.
Lastly, the mother did not think it would be appropriate, at all, for the child to be left with the father during the period of her proposed visit, given that there are currently no orders in place at present for the child to spend any overnight time with the father and that he had only recently moved to having unsupervised time with the child. In addition, any proposal for the child to be left with the mother’s own sister was problematic given the young age of the child and her secure attachment to the mother.
Ms Algalele, for the father, submitted that the child’s best interests warranted the retention of the airport watch list order until the Court could finally determine the dispute. I note that the matter is listed for hearing in February 2012. Ms Algalele submitted that the mother had previously travelled to (country omitted) before the child’s birth and on that occasion, the father asserts the mother indicated to him that it would only be for a short period. It would appear the mother changed her mind and remained in (country omitted) for some seven months, which Ms Algalele asserted or submitted, denied the father the opportunity to be involved in X’s birth and, in addition, for the first five months of the child’s life.
Ms Algalele submitted that the child was now spending frequent and regular time with the father and, should the Court allow the mother to travel with the child, the time away would threaten the bond now developing between the child and the father. Ms Algalele suggested it was possible for the mother to travel without the child, either by leaving the child in the care of her sister, the maternal aunt, or, if she is not willing or not able to do so, leave the child in the care of the father who can have his own sister, the paternal aunt, and/or his mother, the paternal grandmother, available to assist him.
The father denied the mother’s assertions about his alleged motives in selling the former matrimonial home and also denied any assertion that he was trying to exert “power and control” over the mother.
Finally, Ms Algalele submitted that should the mother be allowed to travel with the child then somehow the airline ticket should be “fixed in somewhat” so it could not be changed, thus making it less likely that the mother could seek to stay on in (country omitted) prior to returning, presumably for the final hearing in February 2012.
Ms Baker, as ICL, did not support the lifting of the airport watch list order. By way of summary her reasons were threefold. Firstly, the proximity of the Application in a Case and this decision to the final hearing, that is, to occur in just less than three months time. Secondly, the lack of any recent evidence as to the maternal grandmother’s health. And thirdly, the effect that any separation may have upon the child if the mother were allowed to travel with or without the child. In that respect I should say, the ICL was certainly not supportive of any proposal for the child to remain in the father’s care during the period of the mother’s proposed absence.
Law
As to the relevant law, I summarise this in paragraphs 26 to 34 of my decision given on 15 August 2011.[2] In respect of this specific application before me today, let me state the following.
[2] Finn & Finn [2011] FMCAfam 1135.
There are provisions in the Act that prevent a parent from unilaterally removing a child from Australia when a parenting order is in force or where there are, or when there are, parenting proceedings pending.
Section 65Y(1) provides that, subject to subsection (2), if a parenting orders as defined in s.65X is in force a person who was a party to the proceedings in which an order was made, or a person was acting on behalf of or at the request of such party, must not take or send a child from Australia. Section 65Y(2) of the Act sets out two exceptions where it is done with the consent of the other parent and where it is done in accordance with a Court order. The parent’s consent must be authenticated as prescribed under the Family Law Regulations 1984.
Section 65Z of the Act makes the same provision where there are pending proceedings for such a parenting order. In each case, that is ss.65Y and 65Z, the penalty for any breach is a maximum of three years prison.
The relevant parenting orders are those that provide for a child to live with or spend time with or communicate with a person or provide that the person has parental responsibility for the child.[3]
[3] Section 65X of the Act.
There is also power under the Act, in appropriate circumstances, to make an order restricting a parent or other person from removing a child from Australia, whether such order be considered as an injunction or a parenting order. If the order is a parenting order, it would be governed by the principle that the child’s best interests must be regarded as the paramount consideration and the associate provisions – in other words I am referring to ss.60CA, 60CC, and 60B. If the order is treated as an injunction under s.68B, the paramountcy principle will not apply, but the interests of the child will be an important factor in the exercise of the Court’s discretion.
In Keubler and Kuebler (1978) FLC 90-434, the Full Court (Ashgun SJ, Gun and Yewell JJ), sets out the factors which should be considered in applications to temporarily remove a child out of the jurisdiction:
a)the length of the proposed stay out of the jurisdiction;
b)the bona fides of the application;
c)the effect on the child on any depravation of access;
d)any threats to the welfare of the child in the circumstances of the proposed environment; and
e)the degree of satisfaction in which the Court based its assessment of the parties that are a promise of a return to the jurisdiction would be honoured.
In the relatively more recent case of Line & Line (1996) 21 Fam LR 259; (1997) FLC 92-979, the Full Court (Murray, Lindenmeyer, and Kaye JJ) confirmed that fixing an appropriate level of security for a child’s return was a matter of discretion for the trial judge. In the exercise of that discretion, the Court should have regard to the following matters:[4]
a)the two-fold purpose of the security, namely (i) to provide a sum which will realistically entice the person, removing the child to return; and (ii) to provide a sum to adequately provision the party left in Australia to take action and proceedings in Australia and overseas to obtain the return of the child if required;
b)the degree of risk that the departing parent would choose not to return;
c)whether the country to which the parent will travel with the child is a signatory that can bench on the civil aspects of international trial deduction (the Hague Convention); and
d)the financial circumstances of each of the parties, and the relative hardship imposed on the departing parent by fixing security at a particular level as compared with the hardship to a non-departing parent, if security were fixed at a lower level. Hardship to the child flowing from these factors will also be relevant.
[4] of Line & Line (1996) 21 Fam LR 259, p.263 to 264
The guidance from these cases may still be useful, although they should now be read, of course, subject to the amendments made to the Act in 2006, that provide more detailed guidelines as to what would be in the children’s best interest. In other words, they have to be read in light of more recent cases, such as Goode & Goode (2006) FLC 93-286.
The person proposing to leave the jurisdiction may be ordered to make a cash payment into a solicitors trust account, or to provide other security for his or her return as a way of addressing any risks of non-return.
The Australian Federal Police enforce orders made by this Court and the Family Court, as well as Local Courts. The alerts are placed on a system known as the Airport Watch List maintained by the Australian Federal Police. The Airport Watch List, which is otherwise known as the PACE Alert System, or the PASS Alert System, is based on customs control. It is commonly activated at airports, although it operates all ports, whether it is a customs process including shipping ports. Data is electronically entered in relation to individuals who are the subject of the system, and an alert is activated by reference to their name when their passports are electronically scanned at customs.
When a child’s name is placed on the watch list, it will remain on the list until further order of the Court, or until the child obtains the age of 18 years, whichever occurs first. It is therefore important, when making an order, to consider whether to provide for an order to cease after a particular period. In this case, the other that is currently in force until the child turns 18.
Discussion
In this case the purpose of the mother’s visit is to visit her ill mother, that is the maternal grandmother. It would appear from the evidence that the maternal grandmother has been ill for some time. That said, the Court agrees with the ICL that there is no recent medical evidence to assist the Court. I note that the mother last visited the maternal grandmother for some seven months, or thereabouts, in 2009/2010. In other words, the mother last saw the grandmother less than 15 months ago, and just prior to these proceedings being commenced by the father.
As to the degree of risk I note that, while the circumstances of the 2009/2010 trip is yet to be subject to the testing of evidence; (country omitted) is a signatory to the Hague Convention.
In respect of the Court drawing comfort from the lodgement of the financial security, that will be difficult in this case, given the lack of property and financial resources available. Again, the reasons for that being the case is yet to be tested.
While the mother is has now reduced her proposal significantly by reducing her proposed stay from 8 weeks to just 3 weeks, the Court shares the concern of the ICL, that should the mother be allowed to travel with the child, the regular time that has now been established for the child to spend time with the father, will be broken noting the proximity to the final hearing.
The alternative, of course, might be for the mother to leave the child with the father and the Court shares the view of the ICL that that is not an option that benefits the child’s best interests at this point. One of the many issues for the Court to decide at the final hearing, is whether that time to be spent with the father should extend to overnight time.
Conclusion
Having considered the respective application and submissions in light of the available evidence and the relevant statutory provisions and authorities, the Court is satisfied that any lifting of the Airport Watch List order would not be in the best interest of the child, nor advance her welfare.
I note the father, in his Response, is not seeking any order as to costs. Given her lack of financial circumstances, such an order would not be appropriate in any event.
There will now be orders and notations to reflect this decision.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 7 August 2013