Menil & Cambronnk

[2009] FamCA 246

FAMILY COURT OF AUSTRALIA

MENIL & CAMBRONNK [2009] FamCA 246

FAMILY LAW – CHILDREN – leave to take child out of Commonwealth of Australia for holiday – risk of non-return – lack of parental reliance – application refused

FAMILY LAW – COSTS – order that applicant pay part of respondent’s costs

Family Law Act 1975 (Cth)

FATHER: Mr Menil

MOTHER: Ms Cambronnk

FILE NUMBER: MLC 4976 of 2008

DATE DELIVERED: 16 March 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 16 March 2009

REPRESENTATION

COUNSEL FOR THE FATHER: Mr. Potter

SOLICITOR FOR THE FATHER: Hogg & Reid

THE MOTHER: In person

Orders

1. That each of the parties be and are hereby restrained by themselves, their servants and agents from removing, attempting to remove, or causing or permitting the removal or attempted removal of the child G born … November, 2002 from the Commonwealth of Australia  AND IT IS FURTHER ORDERED  that the Australian Federal Police place 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 further order of the Court  AND IT IS REQUESTED  that Australian Federal Police give force and effect to this order. 

2. That the application of the mother filed 27 February, 2009 and the application of the father filed 12 March, 2009 be otherwise dismissed.

3. That the mother pay the sum of $500 towards the father’s costs of this day and that a stay of six months be granted on payment of such sum.

4. That the reasons for judgment this day be transcribed and copies be made available to the parties.

5. That the preparation of these orders be expedited forthwith.

6. That pursuant to s.62B and s.65DA(2), 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, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

7. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4976 of 2008

MR MENIL

Father

And

MS CAMBRONNK

Mother

REASONS FOR JUDGMENT

1. In broad terms, the parties began a relationship in about 2000.  That relationship ceased in 2008.  They did not marry.  They have a daughter, G, who was born in November 2002.  The mother has a daughter from an earlier relationship, R, who is now 12.

2. Although the court file, common to the Family Court and the Federal Magistrates Court, only commenced on 2 June 2008 there has been considerable litigation between the parties.

3. The father's evidence, disputed by the mother, is that following their separation in 2008, the mother disappeared with both children, and he had to commence proceedings in the Federal Magistrates' Court in order to see G.  The mother's position, as I understand it, is that she had been subjected to significant violence and that she and her children either went into refuge or were assisted by domestic violence services.

4. The proceedings in the Federal Magistrates Court were resolved by final orders made on 3 December 2008, by consent.  The orders provide for the parents to have equal shared parental responsibility for G.  G lives with the father during school terms on alternate weekends from Friday afternoon until Sunday afternoon, and on each Wednesday from 5.30 until 7.00.  She also lives with him for half of all school holidays and on special days.  She lives with her mother at other times.

5. Soon after those proceedings were determined, the mother sought an intervention order against the father in the state Magistrates' Court.  That application was resolved on 23 January, 2009 when mutual undertakings were given. 

6. The father's evidence is that a few weeks later, on 20 February 2009, he went to collect G from school and was given an envelope by G’s teacher (left by the mother) which contained an application that he be dealt with for contravening the final parenting orders of 3 December, 2008.

7. That contravention application had been filed by the mother on 6 February 2009.  Her complaint was that the father had not had G live with him for a period in the school holidays when he was entitled to do so.  His explanation was that he was ill.  The contravention application was dismissed on 24 February 2009 by Riley FM.

8. Assuming that application to have been brought in good faith, the court can infer that the mother believed that spending regular and frequent time with her father was absolutely vital to her daughter's best interests.  In over fifteen years in this court I have never heard a contravention application in which the complaint is a failure by the respondent to spend time with a child.

9. On 27 February 2009, three days after Riley FM dismissed the contravention application, the mother filed another initiating application in this court.  She sought that G be permitted to travel with her, within and outside Australia, without the father's permission upon the mother providing at least two weeks' notice to the father.  She also sought that the father release G’s passport immediately, in order for the child to travel overseas.  As the mother told me, she prepared that application herself, without legal advice, and prepared the affidavit she swore in support of it on 27 February, 2009.

10. In that affidavit the mother deposed that the father acknowledged to Riley FM on 24 February that G’s passport was in his possession.  If there were an issue about it, or about travel, it is a little surprising that she did not then make an application to the federal magistrate or foreshadow an application. 

11. It is the mother’s evidence that life since the parties’ separation on 3 May 2008 has been very difficult for her and the children.  They have spent time in a refuge.  The children had gone to new schools and the children and the mother are receiving counselling through LifeWorks and Connexions.

12. The mother’s evidence is of wanting to take the children for a holiday, to give them a break and forget about the family breakdown and their worries, fears and stresses;  she wants to spend what she refers to as some "quality time" with them, away from everyday life.  She deposed that she wanted to take them to Phuket in Thailand from 5 April to 26 April this year, during the April school holiday period.  That would involve missing a week of school.  She deposed that the school principal approved of her plan;  there is no confirmation of that but I say nothing more.

13. The mother attached a travel itinerary to her affidavit.  Her evidence was that she would need to pay for the bookings by 5 March;  if she did not, she would lose the reservations.  As the application for expedition was not granted, I can assume that those bookings have lapsed.  The mother deposed that it has been a very challenging year, psychologically and emotionally, and that it would be in her interest, and the interests of her daughters to have the holiday in Thailand.

14. The mother moved to Australia from the Philippines.  Today the mother told me that she has no intention of travelling to the Philippines.  She said the father is well aware that she has been estranged from her family of origin for some six years.  This is thus not an application to take a child or children to visit extended family or maternal relatives but to take them on a holiday, to a holiday destination with which she and the children are familiar, and which she says is cheap.

15. The father filed a response on 12 March 2009 in which he sought that the mother's application be dismissed, she pay his costs and she be restrained from removing G, save by order of the court.  He swore an affidavit on 12 March in support of that response. 

16. On his behalf, it is put that the mother's ties with Australia are not strong, despite her having lived here for some time.  It is true that she did not depose to being an Australian citizen but she has with her an Australian passport.  The parties' property proceedings were settled after a mediation last year, after which the mother received some $50,000, so there is no pending litigation to keep her here, particularly litigation holding out the possibility of receipt of a capital sum.  It is submitted that in affidavits filed in the previous proceedings, the mother deposed to how well and stable were her children, evidence at odds with that on which she now seeks to rely.

17. The father deposed to being told by the mother (when they lived together) that there was a period when R saw nothing of her father for some three years, because the mother had “disappeared” with her to the Philippines.  Today, the mother has said that the reason R sees nothing of her father is that he is psychiatrically ill.  She tendered a copy of an intervention order, made at the Dandenong Magistrates' Court on 19 July 2006, which expires at midnight on 19 July 2016, in which the defendant was R.  He was restrained from assaulting her or coming within 200 metres of her or the children.  That intervention order does not contain what might be called the usual exemption for contact pursuant to court orders.  Of course, any order made by this court will take precedence over such an intervention order but that is not the issue here.  R’s father was not present when that order was made, but the order notes that he was served with a copy of the application.

18. On behalf of the father it is put that the mother is not in paid employment.  She rents the property in which she lives.  She has extensive family in the Philippines.  The father does not agree with the assertion that he knows the mother has no contact with her family in the Philippines.  Having heard it today, he responded that she sends money to her family, has regular contact with them and talks to them using Skype.  The court cannot determine those competing allegations, made today by assertion and not on oath.  The court's obligation is to focus on the best interests of the child.  I have already noted what she says about that. 

19. The Philippines is not a convention country, although Thailand is.  It is self evident that it is easy to get from Thailand to the Philippines. 

20. It must be said that the pattern of litigation in the last few months is not consistent with any form of parental alliance, notwithstanding the order for equal shared parental responsibility for G.  The pattern of litigation is at least consistent with the father’s evidence of the mother’s hostility to him.

21. This is not, as said earlier, an application in which the mother seeks to take children to visit extended family.  The Family Law Act 1975 puts a premium on the right of children to maintain meaningful relationships with people other than their parents, and that includes members of extended families. Anyone who has been listening to parliamentary debates and statements made by politicians in the last year would be aware of the emphasis placed on the importance of grandparents in children's lives.

22. This is not a case where it is put that G needs to go to the Philippines to see her grandmother or grandfather, or other relatives.  It is put that Thailand would be a good holiday destination for the family, one they can afford, and one they know. 

23. In my view the risk is simply too great to allow G to be taken from Australia, when her father opposes the travel and where there can be little guarantee of her return to Australia.  That does not stop the mother taking R for a holiday overseas, if that is what she wishes;  pursuant to the existing orders, G could live with her father during the period her mother and sister are away.  I cannot find it to be in G’s best interests to undertake the travel.

24. In relation to the father's application for a watch list order, I am satisfied an order in those terms should be made, relating to both parties.  These parents have equal shared responsibility for G;  neither should be able to take her out of Australia without the consent of the other, or order of the court.  If one consents to the other travelling overseas with G, it is easy to come to court and seek an order, by consent, to allow that particular travel.  There will not be an exception in the order for parental agreement because such an order cannot be implemented by the Australian Customs authorities. 

25. There has been an application for costs, foreshadowed in the response filed by the father.  The Family Law Act 1975 contains the general rule that each of the parties to litigation pays his or her own costs. The court has the capacity to make costs orders and in determining such an application must take into account certain factors set out in the Act.

26. The financial circumstances of the parties are one such factor.  The evidence before me is that the father is not in paid employment;  nor is the mother.  It is quite probable the parties would have different positions about the other's financial circumstances but the court can only act on the evidence before it.  The father is paying the minimum child support assessable in respect of G and the mother supports herself and the children by Centrelink benefits.

27. The mother has been completely unsuccessful in her application.  I appreciate she did not have legal advice.  Had she obtained advice, she might well have been advised that an application to take G for a holiday overseas had scant chance of success.  The current orders do not stop her taking the children for a holiday anywhere in Australia, and many holiday venues are presently offering time at bargain prices, having regard to the global financial crisis.

28. The mother is entitled to bring the application but she is not entitled to demand that the respondent agree, or contest the application without legal representation. 

29. I do take into account the mother's financial circumstances.  The costs of the respondent probably run to around $2,000.  That is a rough estimate, having regard to counsel's fees and the costs of preparing the application, and the supporting material.  I propose to order that the mother pay towards the father's costs the sum of $500 and grant a stay of six months. 

30. I add that were another application to be filed by the mother and be dismissed, as have the last two, she could well face an application for an order pursuant to s.118 of the FamilyLaw Act 1975, requiring her to obtain leave prior to filing further applications.

I certify that the preceding
30 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2009.

…………………………………………
Associate.