Vogel and Franks

[2012] FamCA 1061

FAMILY COURT OF AUSTRALIA

VOGEL & FRANKS [2012] FamCA 1061

FAMILY LAW – CHILDREN – Application by the mother to take the child on a holiday overseas – Principles in Kuebler & Keubler (1978) FLC 90-434 applied – Where the mother has failed to return the child to Australia in the past resulting in proceedings in Country D pursuant to the Hague Convention on the Civil Aspects of International Child Abduction – Where orders were made in Country D for the child’s return to Australia – Where the mother repeatedly did not adhere to those orders –Where there is a real risk that the mother will not return the child to Australia – Where the lack of disclosure of the mother’s financial position means that it cannot be established that the bond offered by the mother is sufficient to reduce the risk of the mother not returning the child to Australia – Application dismissed.

Family Law Act 1975 (Cth) s 60CC
Hague Convention on the Civil Aspects of International Child Abduction

Kuebler & Keubler (1978) FLC 90-434

APPLICANT: Ms Vogel

RESPONDENT: Mr Franks

INDEPENDENT CHILDREN’S LAWYER: Ms Wearne

FILE NUMBER: SYC 6657 of 2007

DATE DELIVERED: 23 November 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 14 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schonell SC

SOLICITOR FOR THE APPLICANT: Barkus Doolan Kelly

THE RESPONDENT: In Person - Mr Franks

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission NSW

Orders

1.   That the application of the mother filed 9 November 2012 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vogel & Franks has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6657  of 2007

Ms Vogel

Applicant

And

Mr Franks

Respondent

REASONS FOR JUDGMENT

Introduction

1. The application before the Court is an Application in a Case filed by the mother, Ms Vogel, seeking permission to take the child B, born … March 2005, to Country D for the period from 20 December 2012 until 12 January 2013. The father, Mr Franks opposes the application. The mother proposes that she lodge a bond of $50,000 with her solicitors which would be released to the father in the event that she fails to return the child on the due date.

2. The father opposes the application and relies on the evidence before the Court of the mother’s actions in 2010 and 2011 which are set out below.

3. The Independent Children’s Lawyer did not oppose or support the application but expressed her view that the Court could not accept the mother’s assurances of the child’s return, having regard to her actions in Country D in 2010 and 2011.

the law

1. Senior Counsel for the mother referred the Court to the decision of the Full Court of Kuebler & Keubler (1978) FLC 90-434. There, the Full Court set out the matters to be considered in such an application as follows:

   (a)The length of the proposed stay outside the jurisdiction;

   (b)The bona fides of the application;

   (c)The effect on the child of any deprivation of access;

   (d)Any threats to the welfare of the child by the circumstances of the proposed environment;

   (e)The degree of satisfaction in which the Court based its assessment of the parties that a promise of a return to the jurisdiction would be honoured.

2. In the present case, the proposed trip is of short duration. I accept that the mother genuinely wishes to spend Christmas with her family and that she is unhappy. The child is not currently spending time with his father.

3. Whether the child’s welfare would be threatened by his being allowed to visit Country D for Christmas and then having to return to Australia is a question in relation to which there is no evidence and in relation which I cannot speculate. The child’s therapy with Ms C would not be unduly interrupted as she will take holidays herself at Christmas.

4. Because the decision which is before the Court is a decision in relation to the child’s parenting, it falls to be decided on the basis that the child’s best interests are paramount. If the Court could be confident that the child will be returned to the jurisdiction, then it would be necessary to consider the matters in section 60CC of the Family Law Act 1975 (Cth) and weigh them up.

5. However, the matter which subsumes all the other considerations is the issue of the mother’s returning the child to the jurisdiction. If the child is removed from Australia and is not returned, then the Court will not be able to consider, in the substantive proceedings, how the various factors in section 60CC bear upon his welfare.

background

1. Proceedings in relation to the child’s parenting are part-heard before the Court, having already been heard for ten days commencing on 6 August 2012. The mother, in the substantive proceedings, seeks orders allowing her to move with the child to live in Country D. She does not propose that there should be any contact of any nature between the child and his father. The father opposes that application and seeks orders that the child live with him in Australia. 

2. There are outstanding issues in relation to expert evidence from a Country D lawyer as to the nature of “mirror orders” which could be made in Country D. The father wishes to cross-examine the expert and to bring further evidence in relation to Country D law. In the alternate, there have been discussions with the parties about the possible utility of the network of Hague liaison judges but those discussions are as yet unresolved.

3. The substantive application comes before the Court in circumstances where the mother wrongfully retained the child in Country D in 2010.

4. Evidence in the substantive proceedings establishes that on 6 July 2009, final parenting orders were made by consent in the Federal Magistrates’ Court in Sydney. The parties retained equal shared parental responsibility. The orders provided that the child live with his father from Wednesday afternoon after childcare until after childcare on Friday or 5.30 p.m. in one week, and from after childcare on Friday until the beginning of childcare on Monday in the alternate week.  School holiday periods were equally shared. The consent orders permitted the mother to travel with the child for six weeks at Christmas each alternate year.

5. In May 2010, with the father’s consent, the mother and the child travelled to Country D. The father agreed that the visit could be extended after a death in the mother’s family. She says that she then decided to stay in Country D.

6. The father expected the mother to return with the child to Sydney on or about 22 June 2010.

7. On 21 June 2010, the mother sent an email to a large group of people which included her therapist, Ms E, advising of her new email address and with the message “This is my new email address in [Country D] – please do not pass it on to others (yes, I’m here now permanently)”. The father was not included in that communication.

8. On 22 June 2010, the father received a further email from the mother. In that email she indicated that she and the child were booked to fly out of Country D on Friday 25 June 2010 at 10.10 pm arriving in Sydney on the morning of Saturday 26 June 2010.  She also requested that the child stay at home with her on the weekend they arrived in Sydney and spend the following weekend with the father.

9. Having regard to her email of 21 June 2010, the mother’s intention must have been to deceive the father.

10. On 28 June 2010, the father, having heard nothing further from the mother, rang the telephone at the home of the maternal grandmother in F Town (in Country D).  The father asked to speak to the child and was told by the grandmother that she did not know where the mother and the child were.

11. On 29 June 2010, the father went to the house that the mother had rented in Suburb G.  The house was completely empty. The mother had arranged for her landlord to pack her belongings and ship them to Country D.  The father then discovered that on Friday 25 June 2010, the mother had sent an email to H kindergarten, where the child had been enrolled since January 2007, cancelling the child’s place in childcare.

12. The father rang the maternal grandmother on numerous occasions in the following days but the calls were not answered.  He had no means of contacting the mother other than by email and she did not respond to his emails.  The mother made no attempt to have the child telephone his father or speak to his father.

13. On 8 July 2010, the father met with the International Kidnapping Team at the Department of Community Services who assisted in bringing an application for the child’s return to Australia pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”).

14. On 27 September 2010, the Country D Central Authority notified the Attorney General’s Department in Australia that the mother and the child had been located in City I and that proceedings had been put in train for the application for the child’s return.

15. The application for the child’s return pursuant to the Hague Convention was lodged in the Local Court, Family Division, City I by the Country D Federal Office of Justice on 5 November 2010.

16. On 13 December 2010, an order was made in Country D for the child to be returned to Australia. The mother appealed.

17. On 15 February 2011, the mother’s appeal was dismissed. On 12 April 2011, the Court in Country D confirmed the order that the child be returned to Australia. The mother did not comply.

18. On 7 September 2011, an enforcement order was made. The mother did not comply.

19. On 30 December 2010, the mother lodged an appeal against the decision of the District Court in City I to the Regional Appeal Court.  The appeal was heard on 8 February 2011 and the father travelled to Country D for the hearing.  There was no contact between the father and the child for the period that the father was in Country D for the hearing of the appeal.

20. On 15 February 2011, the Appeal Court upheld the decision of the District Court.  The orders of the Court were as follows:

    1.The appeal of the mother against the decision of the Family Court [City I] file number 272 F 264/10 dated 13 December 2010 is rejected.

    (ii)The decision dated 13 December 2010 is further specified in that the return of the child must be effected by 28 February 2011.  Should the respondent not comply with the order to return the child by 28 February 2011, she or any other person the child resides with is ordered to hand over the child to the applicant (party described under 3) or to any other person nominated by the applicant, for the purpose of returning the child to Australia.

    (iii)The applicant in liable for any cost in relation to the appeal proceedings, measures of execution and the return of the child.

21. On 1 March 2011, the father received an email from the mother’s Country D solicitor.  In the email the solicitor advises the father that the mother has already booked a one way flight back to Sydney.  The father is asked to agree to the mother and the child travelling to New Zealand for a six day period from 1 April 2011 until 6 April 2011 for a birthday party and to agree to them travelling to Country D for a family wedding for a four week period commencing 6 May 2011.  Annexed to the email was a copy of a booking confirmation for a flight by the mother leaving City I on Sunday 6 March 2011 and arriving in Sydney on 8 March 2011.

22. The mother and the child did not arrive in Sydney on the flights booked to land on 8 March 2011. 

23. On 10 March 2011, a further application was filed by the father before the City I Regional Appeal Court in relation to enforcement.  On 14 March 2011 the Court made orders that the mother inform the Court of the current situation relating to the child’s fitness to travel within four days and that the father inform the Court as to when he was prepared to travel to City I to collect the child and when he would be available to collect the child.

24. The mother filed a further application in the Higher Regional Court (“the Appeal Court”) in City I which was heard on 12 April 2012.  That application was dismissed.  The Court noted, inter alia, that the mother had given no explanation for booking return tickets to Australia to arrive on 8 March 2011 when the due date for return was 28 February 2011.

25. On 27 April 2011, the Appeal Court made orders that the mother was forbidden to change the child’s permanent or temporary place of residence and, in particular, to take the child to a place outside the borders of the city of City I without the authority of the Court.  The mother was ordered to surrender her passport and report to the Police Station twice each week.  The Court said, inter alia, “this measure is the only way to make sure that the child continues to remain in [City I] unless this can still be avoided, something the Appellate Court Division hopes will occur, by the execution of the decision.”

26. Not only did the mother not comply with the order to return the child, she also took steps to evade his return by Country D authorities. She removed the child from City I and travelled with him to City J.

27. On 7 September 2011, the Central Authority in Country D advised that the mother had been located at an address in City J and that the child was attending K School in City J. In a letter the Central Authority notes:

    The mother deliberately evades the enforcement of the decision made by the … Higher Regional Court made on 15 February 2011.  Notwithstanding the fact that the respondent failed to comply with her obligation to report to the police and to handover the passports she is now trying to circumvent the judicial system and all parties involved and to evade the enforcement by relocation secretly.  The [City I] Office advised on 2 September 2011 that the respondent and the child were still registered at the address (in City I).  An enquiry with the Residents’ Registration Office in [City J] revealed that neither the child nor the mother are registered in [City J].  It can also be assumed that the respondent has not only been staying in [City J] for a few days.  In [City J] schools commenced on 20 August 2011.

28. The mother had not informed the father, his solicitor, the Court or the Police that she had left City I with the child.  She flew to City J by a circuitous route.  There is no explanation proffered by her. The only conclusion that can be drawn from her actions is that she intended to evade the order for the child’s return. She did not undertake any of the obligatory administrative processes to de-register herself from City I and register herself in City J. Again, the only explanation for her failure to do so was that she did not wish the child’s whereabouts to come to the attention of the Country D authorities.

29. On 13 September 2011, the child was removed from his school by his father and his paternal grandmother under the supervision of Country D authorities and ultimately returned to Australia and then placed in the care of the mother.

30. It is necessary to consider the mother’s Application in a Case against that background.

Current Application

1. As security for her return, the mother offers to lodge a bond of $50,000. She gives no evidence of her current financial position. In the substantive proceedings, it was the mother’s evidence that she is independently wealthy having received 1/6^th of the shares in a family company by way of inheritance. She gave no more detailed evidence of her financial position. Senior Counsel for the mother objected to the father’s attempts to cross-examine her about her financial position on the basis of relevance, stating that the Court could assume, in the substantive proceedings, that the mother could meet the expenses associated with any condition imposed on her proposed relocation to Country D.

2. The father, in his affidavit in the substantive proceedings, gave evidence that in 2005, the mother had received distributions of six hundred thousand euros and that it was his understanding that she continued to receive similar amounts each year. The father gave evidence that in 2006, when he and the mother met with the managing director of the company, they were told that the value of the company at that time was one hundred and thirty two million euros.

3. For the reasons explained above, the father’s evidence was not challenged and the mother gave no evidence of her actual financial position except to say that on occasions her dividends were re-invested.

4. No evidence was given as to the mother’s financial position, her assets, income or liabilities in the Application in a Case.

5. For the Court to accept that a bond in the sum of $50,000 is real security for the return of the child from Country D, it must be established that such a sum is of sufficient significance that the mother would not risk its forfeit.

6. The mother’s past conduct establishes that there is a real risk that if she is permitted to take the child out of Australia she will avoid his return. I am not satisfied that the forfeit of $50,000 would be sufficient to ameliorate that risk.

7. Until such time as the substantive proceedings have been determined, the child should not be removed from the jurisdiction. To do so would be to risk his not being returned and render the substantive proceedings nugatory.

I certify that the preceding forty five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 23 November 2012.

Associate: 

Date:  23 November 2012