Monroe and Monroe - [2009] FMCAfam 1297

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MONROE & MONROE

[2009] FMCAfam 1297

FAMILY LAW – Parenting orders when father not intending to return to Australia.

Family Law Act 1975 (Cth), ss.60B, 60CA
Federal Magistrates Court Rules2001, r.6.01

Applicant:

MS MONROE

Respondent:

MR MONROE

File Number:

MLC 6657 of 2009

Judgment of:

Phipps FM

Hearing date:

29 October 2009

Date of Last Submission:

29 October 2009

Delivered at:

Melbourne

Delivered on:

29 October 2009

REPRESENTATION

Counsel for the Applicant:

Ms Bonney

Solicitors for the Applicant:

Robinson Gill

The Respondent appearing in person:

ORDERS

Paragraphs 1 to 9 of the order made in the Family Court of Australia at Parramatta on 12 April 2006 are discharged.
The wife have sole parental responsibility for the child [X] born [in] 2003.
The said child live with the wife.
The wife give the husband 28 days notice in writing if she intends to bring the child to the Czech Republic and include in the notice the date she will arrive, the date she will leave, the address at which she will be staying and a contact telephone number.
The husband have telephone communication with the child [X] the first Monday in each month between 4.00pm and 6.00pm Australian Eastern Standard Time by the husband telephoning the wife’s mobile telephone and the wife then passing the telephone to [X].
Otherwise the child’s time with the husband be as agreed between the parties.
Notwithstanding the Airport Watch List order in paragraphs 10 and 11 of the Orders made in the Family Court of Australia on 12 April 2006, the wife is authorised to take the child out of the Commonwealth of Australia at any time.
The wife is to keep the husband informed of any specialist medical attention or hospitalisation the child may require.
The wife is to sign all documents and do all things necessary to authorise the school at which the child may from time to time attend;
(a)To furnish the husband with copies of all school reports, notices and advices concerning the child and any activity involving the child;
(b)To make available to the husband order forms for the school photographs of the child.
The mother of the child [X] born [in] 2003 be permitted to apply for an Australian Passport to enable the child to travel internationally notwithstanding that the father of the child has not signed the passport application form and furthermore the said child be permitted to travel internationally without the permission of the respondent father.
The father, his servants or agents shall not remove the child [X] born [in] 2003 from the Commonwealth of Australia and it is requested that all officers of the Australian Federal Police give effect to this order.
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 names on the Watch List until further Order of the Court.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 6657 of 2009

MS MONROE

Applicant

And

MR MONROE

Respondent

REASONS FOR JUDGMENT

The parties in this case, Ms Monroe and Mr Monroe, have the one child, [X], born [in] 2003. He is nearly six. His mother was born [in] 1977 in the Czech Republic. She is 32. She came to Australia in 1990. She became an Australian citizen in 1993, and is now employed for

30 hours a week [in the Administration Industry].
The husband, Mr Monroe, was born [in] 1976 in the Czech Republic. He is 33. He lived in Australia between 2000 and 2005. In 2005, he returned to the Czech Republic, and now lives and works in Prague.
The parties commenced cohabitation on 17 December 2002, and were married [in] 2003 in Sydney. [X] was born [in] 2003. He is now at kindergarten three days a week.
The parties separated on 7 March 2005, and were divorced on

12 October 2006. These proceedings were commenced by the wife on 30 July 2009, with an application and affidavit filed that day. The mother has filed a second affidavit on 2 September, which responds to the husband’s response and affidavit filed 25 September 2009.
The proceeding had a first court date on 7 September 2009. The only appearance was for the applicant. I made orders on that day. At that time there was some evidence that the husband had been notified, but on 7 September I made orders that, within 21 days, the respondent file and serve a notice of address for service, the address being in Australia, as required by r.6.01 of the Federal Magistrates Court Rules2001, and that a sealed copy of this order be served on the husband by posting to him at his Czech Republic address. At that stage, there was an affidavit which showed that the application and affidavit had been posted to

Mr Monroe at that address. There was some material which suggested that he’d received it. I fixed the matter for final hearing today, that is 29 October 2009. Mr Monroe has filed his response and his affidavit.
The wife commenced proceedings in the Family Court of Australia in 2005. Consent interim orders were made by a judicial registrar on

27 June 2005 in the Family Court of Australia at Sydney. They provided for [X] to live with the mother and the father to have contact each weekend from 9.00am to 5.00pm Saturday for four months, and, thereafter, every second weekend from 9.00am Saturday to 5.00pm Sunday.
A family reported was prepared by Mr Theo George. Dated 6 January 2006. By that stage, the father had left Australia and returned to the Czech Republic. He’d left late in 2005. Final orders were made on

12 April 2006, in the Family Court of Australia at Parramatta. They provide for each party to have responsibility for long term care and development of the child, for the child to reside with the mother, and the father to have contact 10.00am to 4.00pm each Saturday, provided that the mother is notified of the father’s intention to exercise that contact no later than the Saturday in the preceding week. There were orders for each party to keep the other informed of residential addresses and telephone numbers, and if either party intends to move from the area where they each reside, then the parent is to give the other 21 days notice in writing of the intended move. There were orders to provide for the provision of school reports and similar material. There is a note to the order that, for the purpose of the orders which require the mother to provide the father with certain information, the mother currently is able to contact the father care of the paternal grandparents who live in the Czech Republic. There was an order restraining the father from removing [X] from the Commonwealth of Australia, and an airport watch list order.
The application that [X]’s mother now makes is for a passport order. That is, that a passport issue without the consent of the father being obtained, to continue the airport watch list order, to continue the restraint on the father removing [X] from Australia, but authorising the wife to travel overseas.
The response by Mr Monroe proposes that the airport watch list order remain. He proposes that the mother not be allowed to apply for, or obtain, an Australian passport without first obtaining the written consent of the father. He seeks orders for time with [X] so that, while the father resides in the Czech Republic, that the child live with the mother. He applies for a restraint on the mother moving to a different State or Territory without informing the father in writing, and various orders about providing information. He applies for an order that the father communicate with the child via a mobile telephone, internet video messaging, internet, telephone, landline, email and other media at least twice weekly, including one video communication for a period of up to two hours, and then on the various celebratory days; birthdays, Christmas Day and so on. He applies for an order that the child travel to Prague in the Czech Republic for a period of four weeks during summer school holidays each year, and that the father pay the cost. He applies for an order that if the mother wishes to travel overseas, that the mother notify the father at least two months prior to travel and provide information about that travelling.
The father’s response proposes that, upon the father returning to Australia, the child reside with the mother and have contact with the father every weekend from 6.00pm Friday to 6.00pm Sunday, half school holidays, and provision for the various celebratory days. He proposes that there be various details about the mothers address, medical emergencies and education.
The application first came before the court on 7 September 2009. I have fixed it for a final hearing, and I propose disposing of it finally today, because, for the reasons I will give, there is only one set of orders which can be made in the best interests of [X].
Until August 2005, the husband spent time with [X]. The mother says that that was at her home for a period of approximately six hours. The husband then travelled to the Czech Republic in August 2005 for what was initially thought to be a holiday. The family report was ordered on 25 August. The appointments were made for 15 and 16 December. The husband’s solicitors ceased to act on 12 December and informed the report writer that the husband had left Australia and has not returned.
The wife says in her affidavit that the husband has not telephoned, written or seen [X] since he left Australia in August 2005. The husband says he has attempted, on many occasions, to telephone the mother so he can speak to [X], but has not been able to.
The mother moved from Sydney to Melbourne in March 2009. She says that she made the husband aware of her telephone number and address. She says that, on 14 May 2009, she asked and arranged for her maternal grandmother to approach the husband to execute a passport application. That did not occur. She alleges she received abusive text messages including one from a female friend of the husband.
The mother’s current circumstances are that she’s in a domestic relationship with Mr C and has been since March 2009. They live in a four bedroom house in [T] owned by Mr C. [X] has his own room. He attends at the kindergarten nearby. The mother has recently taken up employment working 30 hours a week. She says she wants the passport so she can travel to the Czech Republic with [X] so that he can meet his Czech relatives. She wants the passport for other reasons. The school [X] is attending has in place arrangements for children to travel overseas in grade six. She may wish to take a holiday.
Now, Mr Monroe in his material says that, until he was served with the court documents, he believed that the wife was unemployed and that she still resided in Sydney. He says that, after the orders were made, when he attempted to collect [X] from the wife’s unit, there were always problems. He describes those problems. He says he decided to temporarily leave Australia in September 2005. When he got to the Czech Republic he was diagnosed with gastric ulcers, and he stayed in the Czech Republic since. He describes what has been happening with child support, and he acknowledges that, since he left Australia in September 2005, he has had no contact with [X]. He says that the wife has refused to allow contact.
On 29 July 2009, he authorised the Commonwealth Attorney-General’s Department, International Law section in Canberra, in its capacity as the Central Authority under the Hague Convention, to act on his behalf. He sets out the application. However, there is nothing about this case which would activate any of the provisions of the Hague Convention. There is no issue about where [X] lives, and no issue about him having been removed from his usual place of abode. In fact, he was born in Australia and has resided in Australia all his life. He is now living in Australia with his mother who is an Australian citizen.
The father describes the visit by the grandmother. He says he was told that the passport was needed so that [X] could attend school.
Mr Monroe is appearing today by telephone. He had requested a Czech interpreter and the court had made arrangements for a Czech interpreter to be available here at court. Unfortunately, the interpreter, who is assigned to the task, notified my associate that there was a death in the family and could not come, and there has not been a replacement interpreter. I am satisfied that Mr Monroe has understood the proceedings, and that he has been able to state what he wants to state so far as it is relevant to the issues I have to decide.
He wants frequent telephone contact with his son. He wants orders that, if his son is taken to the Czech Republic, to spend time with him. In the course of discussion, Mr Monroe has acknowledged that a passport can be issued. The position is this. So far as a passport is concerned, Mr Monroe has no specific plans to come to Australia. He has not been here for four years, and he does not put forward any specific plans to come to Australia. The only chance for [X] to see his father is if he travels to Europe, specifically to the Czech Republic. That means he must have a passport. There is no risk that [X] will be moved away from a place where he might be able to see his father. It is not that situation. So there is no reason why he should not have a passport. In fact, there is a very positive reason so far as the objects of the Family Law Act 1975 (Cth) are concerned, that is there is no chance of him seeing his father if he does not have a passport.
So far as making specific orders about [X] to spend time with his father, it is not possible to formulate anything, whether that be in the Czech Republic or whether that be in Australia. [X] has not seen his father for four years. He was not quite two at the time. His father will be a stranger to him. If he ever meets his father again, his introduction would need to be done so as to ensure that he does develop a bond with his father and that he does not becomes distressed in any way. The only order I can see which would meet the objects of the Family Law Act 1975 (Cth), so far as a child seeing a father is concerned, is an order that, if the mother does go to the Czech Republic, at least 28 days beforehand, she notify the father in writing of the date she will be arriving, the date she will be leaving, where she will be staying, and a telephone number where she can be contacted. Then make an order that there be time between [X] and his father as agreed. It is not possible to formulate any specific order. The father has no immediate plans to come to Australia. The circumstances which might exist in six months time will be different to circumstances which might exist in three, four, five or six year’s time. It is not possible to formulate orders other than the father’s time with the child be as agreed.
So far as telephone communication is concerned, the mother proposes that that happen once a month by the father telephoning the mother’s mobile number after school on a Monday, between 4.00pm and 6.00pm, and that happen once a month. Mr Monroe says that it is not enough, and, in normal circumstances, that is clearly not enough. But there has been no communication between father and son for four years. Something is better than nothing. If once a month occurs, that will do something to establish a relationship between father and son. Ordering it on a more frequent basis, given the history of what has happened means that there is a risk of it not happening. There needs to be a pattern established before ordering it fortnightly or weekly, or even twice weekly, as the father proposes. The history shows that it is most unlikely to happen. Once a month might happen. That might establish a pattern. It might mean things can improve.
Under the provisions of the Family Law Act 1975 (Cth), the best interests of the child are the paramount considerations, s.60CA. The objects described in s.60B include that a child is entitled to have parents involved in their lives. What I propose are the only things I can see which are feasible to attempt to have some contact between [X] and his father. Not dealing with the matter now would not improve the situation. It would not change the facts. Mr Monroe is not proposing to come to Australia, so there cannot be a hearing in Australia, there can’t be any sort of introductory contact, and there could not be a family report prepared. It would not be in [X]’s interests to have these proceedings go any further.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate: Jan Smith

Date: 8 December 2009