Fonseca and Fonseca
[2019] FCCA 1795
•27 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FONSECA & FONSECA | [2019] FCCA 1795 |
| Catchwords: FAMILY LAW – Travel orders – orders made permitting father and child to travel – mother refuses to sign passport – mother takes child to hospital fearing child is suffering severe illness – medical tests confirm no illness – mother lodges Notice of Risk – DHHS investigates – DHHS confirms with hospital that child is not unwell – mother seeks intervention order – application dismissed – mother relies upon terrorism attack in Colombo, Sri Lanka, as grounding changed circumstances – intelligence agencies of five countries downgrade risk assessment of travel to Sri Lanka – intelligence agencies downgrade terrorism threat – father undertakes to abort travel to Sri Lanka if threat of harm escalates – application refused – costs – where father informed mother of de-escalation of risk assessment before hearing – propensity to issue myriad applications in proceeding – costs ordered. |
| Legislation: Family Law Act 1975 (Cth), s.117 |
| Cases cited: EPH17 v Minister for Immigration and Border Protection [2019] FCA 824 |
| Applicant: | MS FONSECA |
| Respondent: | MR FONSECA |
| File Number: | MLC 10498 of 2018 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 25 June 2019 |
| Date of Last Submission: | 25 June 2019 |
| Orders Pronounced: | 27 June 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 27 June 2019 |
REPRESENTATION
| The Applicant: | In person |
| Solicitor Advocate for the Respondent: | Ms S. Luddu |
| Solicitors for the Respondent: | Schetzer Constantinou |
Upon the undertaking by the respondent father by his solicitor that during his proposed travel overseas with the child [X] born on … 2010 in the period … 2019 to … 2019, he will not travel to Sri Lanka in the event that there is a change in circumstances such that the level of threat to that country’s security escalates,
THE COURT ORDERS THAT
The Application in a Case filed on 5 June 2019 be dismissed.
The applicant pay the respondent’s costs of this application, fixed in the sum of $1,000 such sum be paid to the respondent’s solicitors within 21 days.
IT IS NOTED that publication of this judgment under the pseudonym Fonseca & Fonseca is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 10498 of 2018
| MS FONSECA |
Applicant
And
| MR FONSECA |
Respondent
REASONS FOR JUDGMENT
These reasons for judgment explain why orders were made dismissing the applicant mother’s Application in a Case seeking that an order made on 1 April 2019, which permitted the respondent father to travel overseas with their child [X] (Child) in the period of … 2019 to … 2019.
A feature of the matter is the increasingly litigious nature of the parties’ relations. On 24 August 2016, the applicant commenced a proceeding seeking parenting orders. Later, the relief sought in that proceeding was expanded to seek an adjustment of property interests. A conciliation conference has been held in relation to the property application, however, the matter was not resolved. A large number of orders have been made in that proceeding.
On 10 September 2018, the father commenced this further proceeding, seeking parenting orders including that his father, the second respondent, be permitted to spend time with his grandchild.
Orders have been made in this proceeding on 15 October 2018, 26 October 2018, 22 January 2019, 1 April 2019, 18 June 2019 and 25 June 2019.
On 15 October 2018, an application was heard that the second respondent, the paternal grandfather, be permitted to spend time with the child, including that he could participate in the child’s extracurricular activities. This application was made necessary in part by reason that on 24 August 2018, the mother had obtained an intervention order (IVO) against the grandfather. The parties had secured a number of family reports; the first, from Ms A dated 22 July 2016, and; the second, from Ms B dated 10 January 2018. At the hearing on 15 October 2018, reliance was placed upon each of those family reports together with other reports or sessional notes relating to the child and a USB containing certain recordings that the mother had made of her discussions with the child which she asked that I consider. I did so. In assessing the alleged risk of harm to the child by her being permitted to spend time with the grandfather, I was not satisfied that the grandfather posed an unacceptable risk. Orders were made listing the parenting application for final hearing on 14 August 2019.
On 22 January 2019, the parties agreed in final consent orders in relation to parenting matters. Relevantly, those final orders embodied their agreement that each party be permitted to travel outside of Victoria provided that the non-travelling party was afforded reasonable notice, details respecting the destinations, departure and return date for the proposed travel.
On 8 March 2019, the father sought orders permitting him to travel with the child in the period of … 2019 to … 2019 for the purposes that they might travel to Country D and Colombo, Sri Lanka. Orders were also sought facilitating that a passport might be obtained for the child. The father’s supporting affidavit demonstrated that since February 2019 attempts had been made by him to secure the mother’s agreement to the proposed travel. It also demonstrated that the father had supplied her with a detailed itinerary. The mother appears to have responded by making an application for an IVO. This was by no means the first such application that had been made by her.
The application for travel orders was opposed by the mother. The mother filed a lengthy affidavit. Amongst the submissions made by the mother was that the father: represented a flight risk; should provide a more detailed daily itinerary for the duration of the trip; should facilitate daily video phone calls between the mother and child; should download a “find my family tracker app”; should be solely liable for all costs associated with the proposed travel (including the child’s clothing); and should be in substantial attendance at all times. In addition, the mother sought orders that the father should pay her, in full, before finalising the passport application, a sum of $200 per week. Finally, in oral submissions, the mother proposed that it would be reasonable to order that the child should wear an electronic anklet so that she could be traced at all relevant times.
On 1 April 2019, orders were made permitting the father and child to travel and to obtain a passport for the child. Conditions imposed on the proposed travel included that the father deposit a sum of $10,000 by way of bond as security to his solicitor’s trust account and that he serve a copy of the order on both the Australian Federal Police (AFP) and the Australian Passport Office. He has complied with those conditions.
No appeal was made against those orders.
The mother refused to sign the passport application. At some point thereafter the mother made application to the relevant authority to secure that the child’s passport was revoked.
In May 2019, the mother made arrangements for the child to undertake a medical examination on the apparent basis that she may be suffering influenza. Arrangements were made for pathology tests to be undertaken. Those tests were carried out on … 2019 and on … 2019 a pathologist reported that, amongst other things, neither influenza A RNA, influenza B RNA nor rhinovirus RNA had been detected.
By reason that the mother filed a Notice of Risk, it was necessary for the Department of Health and Human Services (DHHS) to undertake investigations. DHHS contacted the hospital at which examination and tests had been made in relation to the child’s health. DHHS confirmed that the child’s health was clear.
On 29 May 2019, a state court dismissed an application for an IVO that had been pressed by the mother against the father.
On 5 June 2019, the mother filed an Application in a Case seeking an order which, in effect, would revoke the order made on 1 April 2019 permitting the father to travel overseas with the child. The mother’s affidavit in support of the application was lengthy and annexed several exhibits. It advanced several grounds why, it was submitted, that order should be made. Amongst the grounds relied upon by the mother was that she had made arrangements for a forensic examination of the father’s financial affairs which, as I understood it, supported a conclusion that the father posed a flight risk.
On 18 June 2019, the application came before another judge of the court. The business of the court did not permit that the application could be heard that day and directions were made requiring that each party file a brief submission. The matter was adjourned to my docket on 24 June 2019 and again, the business of the court did not permit that the application could be heard on that date.
On 25 June 2019, the parties made submissions respecting the application. The mother’s submissions were directed to the ‘true intent and motive’ of the father in seeking to travel given, as it was alleged, the history of family violence and his real financial position.
At the hearing the mother was assisted by a friend who provided support. In the course of the mother’s submissions it was said that the matter should be further adjourned in order that the mother could seek legal advice. This oral application was made in the circumstance that the mother has, on occasion retained lawyers but has not done so in relation to this application. Contextually, the application for an adjournment was made a matter of days before the father and child propose to travel. In EPH17 v Minister for Immigration and Border Protection [2019] FCA 824, Kenny J observed (citations omitted):
Of course, the courts are not required to ensure that a party takes the best advantage of the opportunity to present his or her case. Further, a party to civil litigation, such as the applicant in this case, has no absolute right to legal representation in the sense that the judge is required to adjourn the proceeding if the party has no lawyer.
In the course of the hearing, I asked the mother whether she also objected to the proposed course of travel to the Country D. Her answer was at first non-responsive and then equivocal.
The matters above may support an inference that the applicant has sought by each of the means that could be conceived to prevent the child from travelling with her father in accordance with the order.
The substantive basis upon which the application was made arose from the recent terrorist attack in Colombo in April 2019. A number of travel warnings were supplied in relation to the risk assessment respecting Sri Lanka. Without rehearsing all of the material, the following may be said:
a)a state of emergency was declared by the Sri Lankan government including night-time curfews following the terrorist attack in Colombo which occurred on 21 April 2019 and in which several hundred people were killed;
b)the Australian Federal police sent more than 20 of its officers to Sri Lanka to assist following that incident;
c)an announcement by the AFP included that it would continue to monitor the situation in Sri Lanka as it wanted to make sure there were no ongoing potential threats to Australia;
d)a number of intelligence agencies across the world monitored the situation in Sri Lanka;
e)in early June 2019, the governments of Germany, Switzerland and Austria downgraded their assessment of the risk in Sri Lanka;
f)the following week, the government of the United Kingdom also downgraded its risk assessment;
g)then followed, on 13 June 2019, a decision by the Australian government to downgrade its risk assessment of Sri Lanka.
Relevantly, the Australian risk assessment was to downgrade its official advice respecting Sri Lanka from level 3 (reconsider your need to travel) to level 2 (exercise a high degree of caution). This assessment of risk is consistent with that applied by those other western countries.
The evidence discloses that on 14 June 2019, the father’s lawyers communicated with the mother advising her that the Australian government had lowered its risk assessment from level 3 to level 2. The mother was invited to reconsider her application. She determined to persist with it. The evidence does not support a conclusion that there has been any further incidents of violence in Colombo, or more widely in Sri Lanka, since the April terrorist attack. I agree in the submission of the father that, while the risk of terrorism is a seeming reality in global affairs, the revision by the Australian government to downgrade the risk assessment from level 3 to level 2 supports a conclusion that no sufficient change in circumstances exist as would warrant setting aside the order made on 1 April 2019 or making some new and different order: compare Ezard & Ezard [2017] FamCA 26, [45]-[46].
The father proffered an undertaking that if the risk assessment in relation to Sri Lanka altered during the period of his travel with the child, he would not travel with the child to Sri Lanka. I accepted that undertaking.
It was in those circumstances that I concluded the Application in a Case should be dismissed.
The father presses an application for costs in relation to the dismissal of the application in a case, having foreshadowed that such application would be made and having informed the mother on 14 June 2019 that the Australian government had downgraded its risk assessment for travel to Sri Lanka. The mother pressed her application for relief. From my review of the whole of the evidence, I am satisfied that the father has adopted a generally reasonable stance in seeking to resolve this issue with the mother and that he has done so since early 2019. My summary of the evidence above indicates that, objectively, the mother has taken a number of steps to secure the result that the travel order will be aborted.
I have considered the parties’ written submissions in relation to costs and had regard to the factors in s 117(2) of the Family Law Act 1975 (Cth). In light of the particular history of the matter above, I consider that it is appropriate that an order for costs should be made against the applicant. While her maternal instinct may be entirely understandable, her appetite for repeated litigation has become a matter of concern.
In the result, the mother’s Application in a Case filed on 5 June 2019 will be dismissed. I will further order that the mother pay the father’s costs of and incidental to this application fixed in the sum of $1,000 and that that sum be paid within 21 days to the father’s solicitors.
As noted above, the parties also have an extant application for an adjustment of property interests. Their property pool is modest. Their attempts to resolve the matter to this point have not been successful. The applicant has recently engaged a forensic accountant to consider the respondent’s financial position. I was invited to consider that report. If accepted, the matters that it addresses may support an inference that the respondent’s living expenses and lifestyle are not capable of being met by his stated income. Relatedly, I observe that despite his modest income he is to travel to the Country D and Si Lanka for a period of two weeks and will bear the cost of taking his daughter also. As the evidence has not been tested at trial I express no view as to the correctness of the forensic report or the father’s true financial position. The parties should file a single trial affidavit and up-to-date financial statement. The respondent’s trial affidavit should specifically address the matters in the forensic report that the applicant has now served.
As their parenting proceeding has been resolved, I have determined that the hearing date for that proceeding should instead be used to deal with their property application. The parties were agreed that procedural orders could be made in chambers to regulate the preparation of that matter for trial. It will be set down for trial for two days commencing Tuesday, 13 August 2019. Orders will be made in the property proceeding to regulate the orderly preparation of that proceeding for trial.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 27 June 2019
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