Matel and Anifant

[2008] FamCA 1182

FAMILY COURT OF AUSTRALIA

MATEL & ANIFANT [2008] FamCA 1182

FAMILY LAW – CHILDREN – Child to spend time with father in United States – Costs

Family Law Act 1975 (Cth)

APPLICANT: Ms Matel

RESPONDENT: Mr Anifant

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 7814 of 2008

DATE DELIVERED: 22 December 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 22 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant in person

COUNSEL FOR THE RESPONDENT: Ms J. McCormack

SOLICITOR FOR THE RESPONDENT: McCormacks

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER Ms A. Boymal

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER Victoria Legal Aid

Orders

1. That the application for interim orders filed by the father on 27 August 2008 and the mother on 3 December 2008 are dismissed.

2. That all applications for final orders are adjourned before me as the first day of a less adversarial trial at 2.15pm on 10 March 2009.

3. That no party file any further affidavit material or applications except in relation to the breach of the orders made on 19 September 2008 relating to the return from the United States of America of the child.

4. That there be liberty to apply.

IT IS NOTED that publication of this judgment under the pseudonym Matel & Anifant is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7814 of 2008

MS MATEL

Applicant

And

MR ANIFANT

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This is an application brought by the mother of a child, who is seven years of age.  This particular proceeding is nothing short of disgraceful.  I am not referring to the application, but the way in which these parties have conducted the proceedings over the last two years in relation to this child is, in my view, without even looking at the affidavit material, bordering on systemic abuse.  On that basis I propose to ensure that it remains docketed to me and notwithstanding this is a case that should not be heard in the Family Court of Australia, it is one that I will retain. 

2. In September 2008 orders were made of a parenting nature by consent to the parties.  The orders are fairly long winded, but in essence there is an order for equal shared parental responsibility and that the child live with his mother.  The parties consented to and the orders were made by the court that the child spend time with his father from 27 December 2008 to 15 January 2009 and otherwise as agreed in writing.  Importantly, those times were to be spent by the child with his father in the United States of America on the condition that a number of things were fulfilled.  The requirements included that the father keep the mother advised at all times of his residential address in the United States, his contact telephone number and email, as well as his employer's contact details and location.  The orders also provided that the father provide no less than 56 days' notice of his intentions to travel and provide the mother with copies of tickets, itinerary and confirmations of any hotel, motel et cetera that they would be staying at.

3. In the event that the father failed to return the child, then all orders relating to parental responsibility be discharged and the mother have sole parental responsibility and the solicitors be at liberty to expend whatever secured sum was ordered to enable the return of the child, bearing in mind that the United States of America is a signatory to the Convention.  There were also orders in relation to passports and telephone contact.   

4. These proceedings then came back at least another two occasions, if not three before Walters FM in the Federal Magistrates Court of Australia. It seems that the conditions in the orders of 19 September had not been fulfilled and there seems to be some argument about why that occurred, but in any event the parties consented to orders on 9 December and again, further proceedings were before Walters FM on 15 December. On 18 December 2008 his Honour adjourned the proceedings to this court pursuant to section 39 of the Federal Magistrates Act 1999.

5. On 17 December 2008 therefore the mother's application was that the orders of 19 September, which permitted the child to travel overseas for the three-week visitation be "dismissed".  She sought that the orders made on 19 September be reviewed as an urgent matter because of the timing - that has clearly happened - and that the father more importantly spend the three-week visitation in Australia with the child.  She then sought various passport orders. 

6. The father, who is living in America, has, through his Australian solicitor, provided a response document to that application in which, notwithstanding the way it is worded, simply seeks that the application be dismissed.

7. I have to determine this parenting application on the basis of the evidence presented to me and it is important as a starting point to realise that the orders that were made in September were final orders.  On that basis, for the benefit of the child, it is important that he have some opportunity to settle into a routine and the court in a number of decisions over the years has made it clear that courts ought only vary final orders in relation to parenting issues where there has been a significant change of circumstances. 

8. Thus, what I have been looking for is something that has occurred between September and now that might give rise to a justifiable variation on the grounds of change of circumstances.  The mother's application is supported by an affidavit she filed on 17 December.  In paragraph 2 of that affidavit she referred to the fact that on 14 November the father made an application in a case in which he sought to vary the orders of 19 September in relation to the child's travel.  In his application she said he requested that the time spent be extended from three weeks to five weeks and that he requested the surety be reduced from $15,000 to $10,000.  All of those matters have now become irrelevant. 

9. In paragraph 4 of her affidavit she set out that the father had not complied with the conditional orders that I have already mentioned, however, in the affidavit provided by Ms McCormack on behalf of the husband there is an explanation for some of those matters.  Again, those issues may not necessarily now be relevant, having regard to paragraph 6 of the mother's affidavit where she says that on 9 December 2008 the father was given a second chance and variations of the orders were made.

10. It seems now that all of the conditions of the orders in September have been fulfilled.  Those matters are therefore not matters that would preclude the orders of September being fulfilled. 

11. On 15 December the mother came back to court and she said that she learnt that the father had come to Australia from the United States in order to represent himself and that was when the argument ensued about the variation of the security deposit.  She said much to her shock she learned that the father intended to seek a residence order for the child and that he be relocated to live with the father in the United States of America.  I am not at all persuaded that that is a change of circumstances, having regard to the fact that, first, no application has been filed and, secondly, there are no circumstances of which I have been made aware that would justify such an application in any event.

12. The mother goes on in her affidavit to say that she now feels "unsure and unsettled of the outcome of [the child’s] travel overseas" as a result of the hearing on 15 December.  She refers back to the issue of the orders being final in September 2008 and said that had she been aware of the prospect of a variation application she might not have signed the orders allowing the time in the United States.

13. In paragraph 14 of her affidavit she says she does not trust the father to return the child back to Australia.  It appears that there is a background in this case where the child has been overheld and Ms McCormack has given an explanation for that being that the Department of Human Services gave the father advice.  None of those matters in reality is of any great significance because the parties consented to orders not only in September, but subsequent to it. 

14. On that basis I am obliged to conclude that the court was told in September that all of the matters that a court might consider under s 60CC of the Family Law Act 1975 (Cth) (“the Act”) were sufficiently clear in both parties' minds that the court ought not have any concerns about either parent. 

15. The mother goes on to say that she feels frightened for the child if he was not returned to Australia as ordered.  But again, it is quite clear that the parties were able to have some arrangement as regards parenting up until the time that the father went to the United States.  The mother also complains that the father admitted wanting to take the child to America to reside with him, as a result of which she now feels the $15,000 sum is inadequate to cover air fares, accommodation, legal representation, taxi fares and her expenses here in Australia.  There is no evidence that I can rely upon which might justify me varying the $15,000 order.

16. The father has not had sufficient time, according to his solicitor Ms McCormack, to provide a comprehensive affidavit and the best that was able to be done was that an affidavit was filed on the father's behalf based upon the instructions that he gave her.  In reality only paragraph 22 of the affidavit is of much assistance to me in this particular case.  Ms McCormack says that she was instructed the father would not jeopardise any application for residency by overholding the child. 

17. As I said, what I have to have is some indication of some change of circumstances. The Independent Children's Lawyer's counsel today has indicated that I should be conscious of a number of matters, including some concerns about the father's conduct that certainly sounds like a breach of s 121 of the Act. Hopefully he will be made aware that further conduct of that nature will bring upon him the wrath of not only the court, but the prospect that he will be prejudicing any view the court might take about his responsibilities as a parent. The Independent Children's Lawyer also concedes that the intention to seek a change of residence is really not a matter that I ought to give a lot of weight to in terms of this application today.

18. Notwithstanding that the principles of the requirement for a change of circumstances to be proved, it is still clear that any order I make has to be made on the basis of the best interest principles. I start from the presumption in this case that the parties have equal shared parental responsibility and, therefore, presumably each parent has the child's best interests at heart, although I must say, looking at the file, the number of times they have been court one would wonder. For the father to act than to contemplate what was in the best interests of the child would be inconsistent with the various provisions of ss 60B and 60CC of the Act. On the evidence that I have, there is nothing that justifies a conclusion that the father will act so unilaterally.

19. This is a case where there are probably five factors that make the difference.  The first is that there was a consent order by both parties that the child go overseas for holidays.  Secondly, the conditional requirements have been fulfilled, albeit somewhat late.  The third is that the uncle of the child is to accompany him overseas and the mother has signed a letter consenting to that arrangement.  The fourth is the United States of America is a signatory to the Hague Convention and notwithstanding the mother's concern about the cost, it is in fact the State Central Authority who takes responsibility for the enforcement of the residential arrangements.  I have little doubt that the matter would be dealt with expeditiously and the child would be returned not only to where he really belongs, but it would severely prejudice not only the father's prospects of having a residence order granted in his favour in the future, but any prospect of the child going overseas again.  The fifth matter is that the mother's application, albeit justifiably and understandably, is based on nothing other than belief and fear.

20. In my view those matters are not matters that justify a change of circumstances finding here and in those circumstances I see no reason to discharge or vary the orders made in September, including a change to the $15,000 order.

21. Under those circumstances the mother's application is dismissed.

22. There is also an application by the father for costs in these proceedings as a result of his engaging lawyers in the matter. Section 117 of the Act says that each party in proceedings should bear their own costs. The one variation or exception to that principle is where there are circumstances that justify a court in departing from the principle and in the event that the court decides to do so, then factors set out in s 117(2A) apply. In my view this is not a case in which I ought to say there is a justification because of the fact that the father certainly was late in respect of filing or providing the information he was required under the September orders, in addition to which the question about the change of residence application no doubt caused some consternation in the mother's camp. On that basis I do not see any reason to depart from the normal rule and there will be no order for costs.

I certify that the preceding Twenty Two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  5 January 2009