Maurer and Egger and Anor (No.2)
[2010] FMCAfam 1147
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MAURER & EGGER & ANOR (No.2) | [2010] FMCAfam 1147 |
| FAMILY LAW – Parenting – interim – stay order lifted – travel to [T] – non-Hague convention country. |
| Applicant: | MS MAURER |
| First Respondent: | MS EGGER |
| Second Respondent: | MR STADISCH |
| File Number: | SYC 6624 of 2008 |
| Judgment of: | Monahan FM |
| Hearing date: | 17 September 2010 |
| Date of Last Submission: | 17 September 2010 |
| Delivered at: | Sydney |
| Delivered on: | 17 September 2010 |
REPRESENTATION
| Counsel for the Applicant: | None |
| Solicitors for the Applicant: | Warren McKeon Dickson Lawyers |
| Counsel for the 1st Respondent: | None |
| 1st Respondent: | In person |
| 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
Paragraph 11 of the Orders made by this Court on 10 September 2010 (“the Stay Order”) staying paragraphs 2 to 10 therein be lifted.
All extant applications be adjourned to this Court on 10 November 2010 at 9:30am for mention (“the mention hearing”).
The Independent Children’s Lawyer have leave to issue a further two (2) subpoena.
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
The Second Respondent is restrained from applying for any passport(s) from any national Government in the name of MR STADISCH or in any other name.
AND THE COURT NOTES THAT:
(A)Paragraphs 2 to 10 of the Orders made by this Court on 10 September 2010 are in full force and effect.
(B)The First Respondent attended Court today however the Court is not satisfied with the reasons given for not attending on 10 September 2010.
(C)The First Respondent filed an affidavit in Court today with respect to the Appication in a Case filed by the Applicant on 30 August 2010.
(D)The Independent Children’s Lawyer has requested the First Respondent to provide at least one (1) further urine analysis test in accordance with paragraph 5 of the Orders made by this Court, by consent, on 20 July 2010.
(E)The purpose of the mention hearing is to consider whether the Orders of 10 September 2010 and today have been complied with.
(F)The matter remains listed for Final Hearing on 21 March 2011 with an estimate of three (3) days.
(G)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 Maurer & Egger & Anor (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 6624 of 2008
| MS MAURER |
Applicant
and
| MS EGGER |
First Respondent
| MR STADISCH |
Second Respondent
REASONS FOR JUDGMENT
Introduction
One week ago I gave reasons supporting an application of MS MAURER (“the paternal grandmother”) to travel with the child, [X], born [in] 1997 (“[X]”), to and from [T] during late September 2010 and early October 2010.[1]
[1] Maurer & Egger & Anor (No.1) [2010] FMCAfam 1146
When the application came before me on 10 September 2010 I shared the Independent Children’s Lawyer’s (“ICL”) concerns that additional matters needed to be in place to ensure the safety and security not just of the orders and integrity of the orders but also the safety and security of the child.
Consequently, orders were made requiring the second respondent,
MR STADISCH (“the father”), to surrender both his passports to ensure that he could not use those to travel outside the country with [X]. Orders were also made for the paternal grandmother to provide evidence of when she is proposing to leave the country and return to this country. Moreover, evidence was required to satisfy the Court that the paternal grandmother and [X] would be adequately insured for the purposes of that travel and that she had taken the advice of a medical practitioner regarding [X]’s needs in terms of inoculations and the like, to be able to travel.
As a consequence of the paternal grandmother’s most recent affidavit, filed 16 September 2010, I am satisfied that she has provided the Court with the evidence that was ordered.
I note today that the first respondent, MS EGGER (“the mother”), has attended. Although I am not entirely satisfied as to reasons for not attending on the last occasion, I did agree that it was in [X]’s best interest to stay the orders that I made last Friday to give her one more opportunity to turn up and express her views on the application. She did indeed turn up today, albeit a little late, and has sought to file in Court an affidavit outlining her concerns and also attaching various documentation in respect of:
·[X]’s passport application;
·her refusal to consent to [X]’s passport application; and
·Department of Foreign Affairs advice about travel to the country of [T].
Mother’s submissions opposing orders sought
Broadly speaking, the mother’s concerns are as follows:
a)that [X]’s best interests would not be served by the time that she would lose in spending time with [X], during the period that the paternal grandmother proposes to travel;
b)that [T] is an unsafe place for [X] to be in;
c)that [X] may suffer as a result of the time it would take to travel by air from Sydney, via Paris, to [T]; and
d)her concerns that [X] may not return to this country, if allowed to leave.
Discussion
In respect of the mother’s arguments with respect to losing time, there is a clear inconsistency between the evidence of the paternal grandmother, the respondent father and the respondent mother. These are issues that will need to be tested. On the one hand we have evidence from the paternal grandmother and from the father that the mother has not spent any time with [X] since 21 July 2010. The mother, in response, denies that and says that she has been spending regular time with [X], several times a week, every week, since the orders were made although she indicates that she had not spent any time in the last two weeks.
As to her claim in respect of [T] being an unsafe place, I note that the locations that the paternal grandmother intends to travel are not [omitted], which is, of course, the travel advisory concern of the Australian Government.
In respect of the issues of [X]’s safety whilst in [T], he would be accompanied by his primary carer and would be covered by appropriate travel insurance and inoculations in advance to ensure that he was not placed at any risk.
I have no independent evidence from any of the parties about the potential difficulties [X] might have in spending time on an aeroplane travelling to [T]. Although, I note that the ICL is now in support of the paternal grandmother’s application.
As to the risks outlined by the mother about the paternal grandmother not returning, I am not satisfied there is sufficient evidence before the Court to support that assertion. Clearly the paternal grandmother has now provided the Court with evidence of a purchase of a return air ticket. I am satisfied that, despite [T] not being a Hague Convention country, that the paternal grandmother does intend to return to Australia. I am also satisfied that the orders that I proposed last week would prevent the father from travelling and hence it would not make any sense whatsoever for the paternal grandmother not to return.
Decision
I propose listing the matter for a mention date in early November 2010, to ensure compliance with the orders.
Having considered the mother’s submissions today and the available evidence I am satisfied that the stay on the orders I made on
10 September 2010 can be lifted.
I also note today that the ICL has made a request to the mother to provide a further supervised drug screen.
There will be orders of the Court today to reflect this decision.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 26 October 2010
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