MAURER and Egger and Anor (No.1)
[2010] FMCAfam 1146
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MAURER & EGGER & ANOR (No.1) | [2010] FMCAfam 1146 |
| FAMILY LAW – Parenting – interim – child lives with paternal grandmother – seeking to travel with child – issue of passport. |
| Family Law Act 1975, s.60CC |
| Line & Line (1997) FLC 92-729 Webber & Jones and Ors (2007) FamCA 1191 |
| Applicant: | MS MAURER |
| First Respondent: | MS EGGER |
| Second Respondent: | MR STADISCH |
| File Number: | SYC 6624 of 2008 |
| Judgment of: | Monahan FM |
| Hearing date: | 10 September 2010 |
| Date of Last Submission: | 10 September 2010 |
| Delivered at: | Sydney |
| Delivered on: | 10 September 2010 |
REPRESENTATION
| Counsel for the Applicant: | None |
| Solicitors for the Applicant: | Warren McKeon Dickson Lawyers |
| Counsel for the 1st Respondent: | None |
| Solicitors for the 1st Respondent: | None |
| Counsel for the 2nd Respondent: | None |
| 2nd Respondent: | In person |
| Counsel for the Independent Children’s Lawyer: | None |
| Solicitors for the Independent Children’s Lawyer: | Peter Baker Solicitor |
ORDERS
All extant applications be adjourned to this Court on 17 September 2010 at 10:00am for mention (“the mention hearing”).
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
The Applicant is authorised and permitted to apply for and receive an Australian passport for [X], male, born [in] 2007 (“the child”) without first obtaining the consent of the First Respondent.
The child be permitted to travel to and from [T] with the Applicant not before 18 September 2010 and until 31 October 2010.
The Second Respondent forthwith deliver his Australian and [T] passports to the Independent Children’s Lawyer.
Immediately upon return to Australia the Applicant deliver the child’s passport to the Independent Children’s Lawyer
Upon compliance with respect to paragraph 5 herein the Independent Children’s Lawyer may release the Second Respondent’s Australian and [T] passports into the possession of the Second Respondent.
On and from 1 November 2010 MS MAURER born [in] 1950 and her servants and agents are restrained from taking or sending or attempting to take or send the child [X], male, born [in] 2007 from the Commonwealth of Australia.
On and from the date of these Orders MS EGGER born [in] 1987 and MR STADISCH born [in] 1977 and their servants and agents are restrained from taking or sending or attempting to take or send the child [X], male, born [in] 2007 from the Commonwealth of Australia.
The Marshal and all officers of the Australian Federal Police and the police forces of the States and Territories are requested and authorised to give effect to these orders.
The Court requests that on and from 1 November 2010 and until further order the Australian Federal Police place the name of the child on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child from Australia in breach of these orders.
The Orders made in paragraphs 2 to 10 herein be stayed for seven (7) days until the mention hearing on 17 September 2010 at 10:00am to enable the First Respondent to attend on that occasion and express any concerns she may have with respect to these orders (“the Stay Order”).
THE COURT DIRECTS THAT:
The Applicant is to take the child to a general practitioner to obtain advice and if necessary facilitate the administration of injections and/or vaccinations to benefit the child travelling to [T].
The Applicant make, file and serve an affidavit on or before the mention hearing with respect to the following matters:
(a)Compliance with paragraph 12 herein; and
(b)Attaching evidence of the following:
(i)A return air ticket for the child;
(ii)Travel itinerary for the proposed travel from 18 September 2010 until 31 October 2010; and
(iii)Travel insurance for the child for the entirety of the trip.
The Applicant cause her solicitors to forthwith serve a copy of these orders personally by a third party (“the process server”) upon the First Respondent.
If personal service referred to paragraph 12 herein is unsuccessful then the process server may leave a copy of today’s order at the last known residential address of the First Respondent being [omitted].
AND THE COURT NOTES THAT:
(A)An interpreter will be required for the Applicant in the Arabic language at the mention hearing.
(B)The First Respondent was called outside of Court at 10:00am and 11:20am today and there was no response to the call.
(C)
The purpose of the mention hearing is to consider the position of the First Respondent with regards to this application in a case filed
30 August 2010.
(D)In the event that the First Respondent does not attend the mention hearing the Stay Order will be lifted.
(E)In the event that the First Respondent agrees with the Orders herein as sought by the Applicant then the parties have leave to approach Chambers seeking to lift the Stay Order and vacate the listing of the mention hearing.
(F)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 Mauer & Egger & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 6624 of 2008
| MS MAURER |
Applicant
and
| MS EGGER |
First Respondent
| MR STADISCH |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application in a case filed by MS MAURER (“the paternal grandmother”) who is the primary carer of the child, [X], born [in] 1997 (“[X]”). This application in a case seeks orders that will permit the paternal grandmother to travel with [X] out of Australia for the purposes of visiting relatives in [T] between 14 September 2010 and 31 October 2010, returning to Australia on or before 1 November 2010.
The paternal grandmother is also seeking an order for the issue of a passport in respect of [X], notwithstanding that the consent of the first respondent, MS EGGER (“the mother”), has not been obtained. The consent of the second respondent, MR STADISCH (“the father”), has been obtained.
In the alternative, should the paternal grandmother’s application in a case, in terms of her request to travel overseas be unsuccessful, she is seeking in the alternative that [X] live with the respondent father for the period that she is otherwise travelling overseas.
This matter was the subject of an application for review which I determined last Friday, 3 September 2010. On that occasion I determined there was sufficient urgency to list the matter as quickly as the Court could accommodate. It was listed to today, 10 September 2010 at 10:00am.
Today the paternal grandmother is present in Court and represented by her solicitor, Mr Dwyer. The father is a self-represented litigant and appears in person and Ms Baker appears as the Independent Children’s Lawyer (“ICL”). Unfortunately, the mother has not appeared today despite being called outside Court at 10:00am and again at 11:20am this morning.
Service upon mother
As to service upon the mother, the paternal grandmother, through her solicitor, has tendered in evidence today copies of two letters forming Exhibit “A1” from her solicitors addressed to the mother at her address in [omitted]. The first is dated 1 September 2010, and the second letter is dated 6 September 2010. The correspondence advises the mother that:
·the application in a case was to be filed and considered; and
·the application was listed for mention today.
Moreover, the applicant, through her solicitor, has tendered a file note that would tend to indicate that he made a telephone call to the mother on 6 September 2010 in relation to this matter but that call was not answered.
In her submissions to the Court this morning, the ICL indicated that she had spoken to the mother on 24 August 2010 in relation to these proceedings and she submitted to the Court that a discussion in respect of the paternal grandmother’s proposed application occurred, and that the mother appeared to be aware that this application may be made. The ICL also submitted to the Court that she left a telephone message on the mother’s mobile phone in respect of requesting a drug screen from the mother pursuant to existing orders, but that the call was unanswered and consequently the message was left on the mother’s phone. Finally, the ICL advised the Court that she has not heard from the mother since that call was made.
The father in his affidavit filed on 30 August 2010, in particular in paragraph 30, provides evidence about meeting the mother on or about 13 August 2010 indicating the paternal grandmother’s proposed trip to [T] with [X] and asking the mother whether she would consent to signing the necessary passport application to facilitate [X]’s travel. The father’s evidence is that the mother refused to sign the application. The father also submitted to the Court that he has not seen or spoken to the mother since.
The ICL also advised the Court, and this was confirmed by the father and the solicitor for the paternal grandmother, that the last occasion the mother spent with [X] was a period of three to four hours on 21 July 2010.
The Court has no explanation as to why the mother has not spent further time with [X] since that date but the ICL indicated to the Court that she has received certain information from the father and she is proposing to subpoena various hospitals, two hospitals in particular, [A] Hospital and [B] Hospital, to see if there are records that may be relevant to the parenting dispute.
In the circumstances, I am satisfied that the mother is aware of these proceedings and I have agreed to consider the application notwithstanding the mother’s non-appearance today. However, I do have some concerns as to why the mother has been unable to attend today and, consequently, I believe the matter may benefit from a further listing to consider the mother’s position with respect to this application.
Background
This matter has had a long history before the Family Court of Australia and was recently the subject of an order transferring the matter to this Court. The matter came before me for the first time on 26 June 2010. On that occasion I made orders adjourning the matter to 20 July 2010 and that all existing parenting orders would remain in full force and effect. The matter came before me again on 20 July 2010, and on that occasion I listed the matter for further mention and final hearing in 2011. In addition, I approved orders by consent to the following effect, that:
·All previous orders are discharged;
·[X] live with the paternal grandmother;
·[X] spend time with the mother as agreed with the paternal grandmother;
·[X] spend time with the father as agreed with the paternal grandmother;
·For the purpose of [X] spending time with the mother, the father shall deliver [X] to and collect him from the mother unless otherwise agreed; and
·the mother and father undergo urinalysis at the request of the ICL within 48 hours of such request in accordance with the Australian and New Zealand Standard, and provide the results to the ICL within 48 hours thereafter.
Issues
It is clear to the Court that [X] has been primarily in the care of the paternal grandmother for much of his life. It is also clear to the Court that the paternal grandmother’s reasons for needing to travel to [T] have merit given that she is proposing to attend the birth of her daughter’s child. Of some concern, nonetheless, is the reality that [T] is not a signatory to the Hague Convention on International Child Abduction. That concern was also expressed by the ICL. However, the ICL, although not supporting the application today, is not opposing the application either.
The ICL in her submissions drew some comfort from material that would indicate that the paternal grandmother’s daughter will be delivering her child, to quote the ICL, “in one of the better hospitals in [T]” and, consequently, the parties would have access to that hospital in the event of any accident or injury affecting [X]. The ICL also drew comfort from the fact that there will be evidence that [X] will be covered by appropriate travel insurance. The ICL also submitted that she had no concerns that [X] would not be returned to Australia by the paternal grandparents.
The ICL did have concerns if [X] was separated for any prolonged periods from the paternal grandmother as she has been the primary carer of him for much of his life. She would also have concerns if [X] were to, in the period proposed for travel, be required to live with either the father or the mother.
The solicitor for the paternal grandmother provided the Court with extensive written submissions which the Court has considered. I will not read those submissions into the transcript but they address the relevant legislation, in particular the primary considerations and additional considerations in s.60CC of the Family Law Act 1975 (“the Act”) as to why the [X]’s best interests would be served by making the orders sought by the paternal grandmother.
The solicitor for the paternal grandmother also asked the Court to consider the decision of Boland J in the case of Webber & Jones and Ors (2007) FamCA 1191, a case where her Honour also considers the Full Court case of Line & Line (1997) FLC 92-729. The Court has considered that material this morning.
Decision
The Court has formed the view that it would be in [X]’s best interests to remain in the care of the paternal grandmother whilst she travels to [T] for a period of approximately five weeks. Consequently, [X] should be allowed to travel with the paternal grandmother and that will necessitate the obtaining of a passport for him.
That said, the Court also has concerns given the mother’s non-attendance today and, consequently, the orders that I foreshadowed earlier in this decision will be stayed for seven days to enable the mother to attend on the next occasion and express any concerns that she may have with the Court’s decision.
The will be other orders as foreshadowed that will require the father to surrender his passports to the ICL for the period of [X]’s trip. The paternal grandmother will also be required to provide evidence to the Court confirming her travel particulars. She will also be required to take [X] to his general practitioner to get advice for the travel and to undergo inoculations if needed. The paternal grandmother will also be required to take out appropriate travel insurance to protect the child. She will also be required to cause her solicitors to serve a copy of today’s orders on the mother.
The will be orders of the Court to reflect this decision.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 26 October 2010
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