Mancini and Kendling
[2010] FMCAfam 623
•22 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MANCINI & KENDLING | [2010] FMCAfam 623 |
| FAMILY LAW – Children – interim orders – overseas travel – Airport Watch List – child aged three years residing with mother – where proposes to take the child out of Australia to visit Belgium, France, Germany, The Netherlands, and the United Kingdom – no likelihood of risk that child will not be returned to Australia. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC, 65Y, 111B Family Law (Child Abduction Convention) Regulations 1986 (Cth) Sch. 2 |
| Line & Line (1997) FLC 92-729 |
| Applicant: | MR MANCINI |
| First Respondent: | MS KENDLING |
| File Number: | SYC 6904 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 17 June 2010 |
| Date of Last Submission: | 17 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 22 June 2010 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Kable |
| Solicitors for the Applicant: | W.E. Kable |
| Solicitor for the Respondent: | Mr Myers |
| Solicitors for the Respondent: | Central Coast Family Law |
| Solicitor for the Independent Child’s Lawyer: | Ms Soliman |
| Solicitors for the Second Respondent: | Legal Aid NSW |
ORDERS
The name of the child [X] MANCINI also known as [X] KENDLING- MANCINI born [in] 2007 is to be removed from the Airport Watch List also known as the PACE Alert System maintained by the Australian Federal Police forthwith.
The Mother MS KENDLING born [in] 1968 is permitted to take the child [X] MANCINI also known as [X] KENDLING-MANCINI born [in] 2007 out of the Commonwealth of Australia for the purposes of visiting Belgium, France, Germany, The Netherlands and the United Kingdom between 25 June 2010 and 17 July 2010.
IT IS NOTED that publication of this judgment under the pseudonym Mancini & Kendling is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 6904 of 2009
| MR MANCINI |
Applicant
And
| MS KENDLING |
First Respondent
REASONS FOR JUDGMENT
Application
This is an application about whether the parties’ three year old daughter should have her name on the Airport Watch list maintained by the Australian Federal Police and whether her mother should be permitted to take her out of Australia for the purpose of a holiday in Europe. Whilst there are other matters to be decided on an interim basis, the question of overseas travel by this child will be dealt with as a discrete issue, as there is some degree of urgency attached. The Mother wishes to travel with the child, the child’s two half-brothers, and the Mother’s former husband to Germany, The Netherlands, Belgium, France and the United Kingdom between 25th June and 17th July 2010.
The Orders Sought by the Parties
The Father filed an Application in a Case on 3rd December 2009 seeking the following order:
That Until Further Order each party, MR MANCINI born [in] 1950 and MS KENDLING born [in] 1969, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child [X] MANCINI born [in] 2007, from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until the Court orders its removal.
The Mother filed an Application in a Case on 31st May 2010 seeking the following orders:
1.That the child of the relationship [X] Kendling-Mancini be removed by the Australian Federal Police from the Airport Watch List.
2.That the Applicant Mother be entitled to travel with the said child outside of the Commonwealth of Australia.
3.That the Respondent Father pay the Applicant Mother’s costs of this application.
The Father’s Proposals
In his affidavit filed on 3rd December 2009 in support of his application, the Father deposed that his substantive application for interim and final parenting orders had been set down for the
8th February 2010. The reasons he gave in his affidavit for seeking that the child’s name to be placed on the Watch List are:
a)“The real likelihood” that the Mother would attempt to take the child overseas before the hearing on 8th February 2010;[1]
[1] Affidavit of Mr Mancini sworn or affirmed 2/12/2009 at paragraph [6]
b)His overall concerns for the child’s welfare would be magnified if she were taken overseas by her mother;[2]
[2] Affidavit of Mr Mancini sworn or affirmed 2/12/2009 at paragraph [9]
c)The Mother has already demonstrated “her propensity for travelling overseas” and he has a real anxiety that the Mother may not return the child to Australia;[3]
[3] Ibid at [10]
d)
The Mother’s solicitors had informed him in a letter of
30th October 2009 that the Mother had travelled to Amsterdam without notifying him;[4]
[4] Ibid at [11]
e)The Mother had told him in August 2008 that she intended to move to Europe as soon as her then husband died and in January 2009 told him that she wanted to move to London to [occupation omitted];[5]
[5] Ibid at [13]
f)The child has health problems resulting from a prolonged focal febrile seizure, which the Father believes relate to the Mother’s use of drugs and alcohol during pregnancy;[6]
[6] Ibid at [15]-[16]
g)The Mother denied using alcohol during her pregnancy when speaking to a paediatrician in June 2007 and the Father fears that she would make a similar denial to medical practitioners if the child were to require medical attention whilst overseas;[7]
[7] Ibid at [18]-[19]
h)The Mother has cancelled medical appointments for the child;[8]
[8] Ibid at [20]
i)The child is on a medication called Tegretol which is an anti-epilepsy drug although the child has not been diagnosed with epilepsy;[9]
[9] Ibid at [21]
j)The Mother travelled to Europe on holiday in December 2008 and the Father met her there and looked after [X] whilst the Mother went elsewhere;[10]
k)The Father fears that there would be no-one available to care for [X] if she were overseas on a future occasion;[11]
l)The Mother was diagnosed with Hepatitis C 20 years ago “after sharing needles” and has a heart problem which required her to consult a cardiologist in 2008;[12]
m)He has observed the Mother consume marijuana and “and have binges of drinking excessive amounts of alcohol”;[13]
n)The Mother has purchased drugs in Amsterdam and Paris;[14]
o)There are coffee shops in Amsterdam that sell cannabis as well as coffee and the mother has patronised one such establishment known as “the [B]”;[15]
p)The Mother has attempted suicide on more than one occasion;[16]
q)The Mother has driven under the influence of alcohol and has had car accidents;[17]
r)The Mother has had lengthy bouts of depression;[18] and
s)The Mother had a child called [T] who died in infancy.[19]
[10] Ibid at [23]-[25]
[11] Affidavit of Mr Mancini 2/12/2009 at [26]
[12] Ibid at [27]
[13] Ibid at [28]
[14] Ibid at [29]-[30]
[15] Ibid at [31]-[32]
[16] Ibid at [33]-39]
[17] Ibid at [40]
[18] Ibid at [41]
[19] Ibid at [43]-[44]
It is for these reasons that the Father deposed that he feared that something untoward would happen whilst the Mother and child were travelling overseas and there would be no-one to look after the child [X].
The Mother’s Affidavit in Reply
The Mother filed an affidavit on 5th February 2010 affirmed that same day in which she replied to the Father’s affidavit. She deposed that:
a)She has three older children from her two prior marriages; she is now on good terms with her former husband Mr Kendling, who is the father of her sons [Y] and [Z];[20]
[20] Affidavit of Ms Kendling affirmed 5.2.2010 at paragraphs [6]-[8]
b)She travelled overseas with the Applicant Father over the Christmas holidays in 2008/2009 and with Mr Kendling and the children, including [X], over the 2009/2010 holiday break;[21]
[21] Ibid at [8]-[10]
c)She never considered not returning to live in Australia with the child as her family members all live in Australia;[22]
[22] Ibid at [12]-[13]
d)The Mother was staying in the Netherlands in 2009 when her solicitor advised her that the Applicant had commenced proceedings in this Court;[23]
[23] Ibid at [11]
e)She lives in a suburb of Sydney and owns other real estate in New South Wales;[24]
f)She informed the Father in June 2009 of her plans to travel to Europe over the Christmas break and he raised no objection;[25]
g)The child has been under the care of various medical specialists and has been prescribed Tegretol for her seizures;[26]
h)The Mother disclosed to the Father that she had Hepatitis C, which she claims arose from a tattoo when she was aged 18, but it is well controlled and she is in good health;[27]
i)The Mother stated that when the Father visited the Netherlands with her in the 2008/2009 Christmas holidays, she left [X] with him whilst she went into a dress shop. When she came out of the shop, neither the Father nor the child were present and it was more than an hour later that the child was returned by the police, who told her that the Father had left her with strangers in the street;[28]
j)The Mother denied that she consumed marijuana or drank alcohol to excess whilst pregnant;[29]
k)The Mother referred to the death of her child [T], who was stillborn;
l)The Mother conceded that she had abused alcohol after the death of her first husband and that one occasion, but not four, she had attempted suicide whilst suffering from depression;[30]
m)The Mother denied that she took cannabis whilst staying in London or Amsterdam;[31] and
n)The Mother conceded having been charged with driving with the prescribed concentration of alcohol in her bloodstream on two occasions.[32]
[24] Ibid at [14]
[25] Ibid at [17]
[26] Ibid at [20]-[21]
[27] Ibid at [46] and [115]
[28] Ibid at [49]-[50]
[29] Affidavit of Ms Kendling 5.2.2010 at [53]
[30] Ibid at [59]-[60]
[31] Ibid at [100] and [102]
[32] Ibid at [116]
The Mother’s Proposals
The Mother relies on two affidavits in support of her Application in a Case:
a)Her affidavit affirmed on 28th May 2010; and
b)An affidavit by her solicitor, Matthew David Myers, also sworn on 28th May 2010.
In her affidavit, the Mother refers to consent orders made between the parties on 8th February 2010, which provide (inter alia) that the Father would spend time with the child at the [R] Contact Centre, and required the parties to attend an intake session at the centre. She annexed copies of correspondence from her solicitor to the Father’s solicitor about the Father’s apparent failure to contact the Contact Centre. She also deposed that on 25th May 2010 she had a telephone conversation with a person at that Centre who said that the Father had told the Centre that it was no longer necessary for him to attend.
The Mother also set out her proposals for her forthcoming trip overseas:
a)She intends to leave Australia in company with the child [X], her sons [Z] and [Y], and her ex-husband Mr Kendling on 25th June 2010 and return on 17th July 2010; and
b)The Mother proposes to travel to Germany, Holland, Belgium, France and possibly England, and she has annexed copies of her itinerary.
The Mother deposes that she has every intention to return to Australia after the trip and sets out that she has enrolled in a [omitted] course that commences on 19th July 2010.
The Mother deposes that she is happy to put up “a paid bond of $50,000.00 of necessary to ensure my return to Australia.”[33]
[33] Affidavit of Ms Kendling affirmed 28.5.2010 at paragraph [26]
The affidavit of Mr Myers, the Mother’s solicitor, sets out a conversation he had with an officer of the Australian Federal Police on 27th May 2010, in which the officer told him that the child’s name had been placed on the Airport Watch List as a result of information provided by the Father on 3rd December 2009. I note that this is the same date that the Father’s application in a Case and supporting affidavit were filed, although the Father does not mention in his affidavit that he proposed to take this unilateral action.
Submissions
The Mother submits that the holiday abroad will be beneficial for the child and there is no risk that she will not be returned to Australia.
Ms Soliman, who appeared for the Independent Children’s lawyer, had no submission to make either for or against the proposal.
The Father’s solicitor, Mr Kable, submitted that the Father strongly opposed the trip overseas and expressed fears of the ready availability of cannabis in Amsterdam. He told the Court that the Father had not attended the intake interview at the [R] Contact Centre because he held fears for his safety in that area. Mr Kable conceded that there was no real fear that the Mother would not return to Australia; rather, it was the Father’s concern for the child’s welfare whilst overseas that caused his opposition to her being taken out of Australia.
The Relevant Law
In any application to take a child out of the jurisdiction temporarily, the Court must consider whether there is a risk that the child will not be returned to Australia.
The Full Court of the Family Court of Australia considered this question in Line & Line[34], which concerned an application by a mother to take a child out of Australia to the United States of America for a holiday. The Court must consider the degree of risk that the child will not be returned to Australia and whether the country of travel is a signatory to the Convention on the Civil Aspects of international Child Abduction signed at The Hague on 25 October 1980 (“The Hague Convention”) (see Family Law Act 1975, s.111B).
[34] (1997) FLC 92-729
Schedule 2 of the Family Law (Child Abduction Convention) Regulations 1986 shows the following;
a)Belgium became a party to the Convention on 1st May 1999;
b)France became a party to the Convention on 1st January 1987;
c)Germany became a party to the Convention on 1st December 1990;
d)The Netherlands became a party to the Convention on 1st September 1990; and
e)The United Kingdom became a party to the Convention on 1st January 1987.
Thus, all the countries that the Mother proposes to visit are Convention countries.
Conclusions
The Mother has taken the child out of Australia on previous occasions and has always returned her to the jurisdiction. The evidence shows that the Mother was outside Australia, in The Netherlands, when she became aware that the Father had commenced the substantive proceedings. Nevertheless, the Mother returned to Australia with the child. Whilst the Father deposed in his affidavit of 2nd December 2009 that there was “a real likelihood of [X]’s mother, Ms Kendling (“Ms Kendling”) attempting to take [X] overseas before the hearing in February 2010”, that eventuality clearly did not occur.
The Mother has provided evidence that she has strong ties to Australia due to family, business and ownership of real estate.
The Father has expressed fear that the Mother will visit Amsterdam, where cannabis is said to be freely available. Whilst Australia clearly does not have such a laissez faire attitude to cannabis, it is public knowledge that it is not difficult to acquire cannabis in Sydney, where the Mother lives. The Mother may well have two convictions for driving with the prescribed concentration of alcohol in her bloodstream in New South Wales, but it does not appear to be any more or less likely that such an eventuality will occur when she visits Europe.
The Father has given no evidence that the child has ever been subjected to harm, neglect or abuse on any previous trip outside Australia, and such a matter is relevant when considering the best interests of the child (ss.60CA, 60CC(2)). There is, however, on the Mother’s affidavit of 5th February 2010, a serious allegation that the Father neglected the child by leaving her in the care of strangers in an Amsterdam street in the 2008/2009 school holidays, which led to intervention by the Dutch Police.[35] This allegation, if it were established, would cause the Court serious concern about the welfare of the child in the Father’s care, not the care of the Mother.
[35] Affidavit of Ms Kendling 5.2.2010 at [49]-[50]
The Mother has produced medical evidence that supports her claim that she is mindful of this child’s medical condition. The husband denies this. He has not given any evidence that he has any medical expertise at all that would countervail his concerns about the fact that the child has been prescribed Tegretol by a treating doctor.
In short, the Father’s evidence does not establish that there is any risk that the child will not be returned to Australia or that she is likely to suffer any greater risk of harm than she would be exposed to if she were to remain in Australia. His concerns as set out in his affidavit are fanciful.
It is also of concern, based on Mr Myers’ affidavit, that the Father appears to have unilaterally taken steps to place the child’s name on the Airport Watch List maintained by the Australian Federal Police, without disclosing this in any affidavit filed in this Court.
There is no basis to justify the need for the child’s name to be placed on the Airport Watch List and I intend to order that it be removed. A holiday in Europe with her mother and half-brothers would appear to be in the child’s best interests. I will make an order that the Mother is permitted to take the child out of Australia between 25th June and
17th July 2010 in accordance with the requirements of s.65Y(2) of the Family Law Act.
The Father’s solicitor has asked that his client’s costs be reserved. I am prepared to hear submissions on costs by both parties.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 18 June 2010
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