ALLARD & ALLARD

[2015] FamCA 476

FAMILY COURT OF AUSTRALIA

ALLARD & ALLARD [2015] FamCA 476

FAMILY LAW – PARENTING – Mother to have sole parental responsibility – Children’s names to be placed on the PACE Alert list

APPLICANT: Ms Allard

RESPONDENT: Mr Allard

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Ms Smithies

FILE NUMBER: CAC 341 of 2015

DATE DELIVERED: 25 May 2015

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 25 May 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Farrar

SOLICITOR FOR THE RESPONDENT: Ms Heinze (on a limited basis)

Orders

1. The children B, born … 2003, and C, born … 2006, live with their mother.

2. a.        That the mother have sole parental responsibility for the children. 

   b.Notwithstanding the last mentioned suborder the mother will authorise and direct any school that the children attend to make available to the father upon his request and at his expense information relating to the children from time to time including but not limited to school notices and reports.

   c.Notwithstanding the first suborder mentioned above in this matter the mother will authorise any medical practitioner or a person of similar professional capacity that the children attend for treatment or for health reasons to provide to the father at his request and expense information about the children’s medical conditions and the treatment that has been prescribed for them. 

   d.The mother will make available to the father information about any practitioner who is treating the children in a medical or allied capacity into the future within a reasonable time of the children attending upon such a practitioner.

   e.Notwithstanding all the previous orders if the children are subject to any urgent or serious medical condition the mother will advise the father as soon as possible about that medical condition and what is happening with the children. 

3. The children will spend time with their father as may be agreed by the parents or as ordered by this Court in due course. 

4. Neither parent, being Ms Allard, born … 1972, or Mr Allard, born … 1972, will remove or cause another person to remove the children B, born … 2003, a female, and C, born … 2006, a female, from the Commonwealth of Australia without permission of the Court and for the purpose of this Order the children shall be placed on the PACE Alert List by the Australian Federal Police at all airports and points of departure and all officers of the Australia Federal Police, any state or territory police forces of Australia and the Marshall of the Family Court of Australia are authorised and directed to enforce this Order. 

5. The names of the children will remain on the Watch List until further order of this Court or the expiration of three years from the date of this Order, which ever event shall first occur. 

6. The respondent will pay the applicant’s costs of and incidental to the proceedings in this Court on 15 April 2015 quantified by me in the sum of $1,000.

7. The matter is removed from the pending cases list. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Allard & Allard 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

FILE NUMBER:

Ms Allard

Applicant

And

Mr Allard

Respondent

REASONS FOR JUDGMENT

1. In this matter, the proceedings before the Court have been complicated by issues that do not relate to the two children who are the subject of the proceedings, namely, B, born in 2003, and C, born in 2006. 

2. The situation appeared to be somewhat straightforward in that the question is where the children are going to live and with which parent.  It is complicated by the fact that Mr Allard, who was represented in these proceedings, at least, in a limited fashion by Ms Heinze (and this is no criticism of Ms Heinze’s professional ability) was an accredited diplomat with the delegation for the Australian Capital Territory of the European Union.  As such, he was entitled to diplomatic status, and this prevented him, in my opinion and I so hold, from being subject to any orders of this Court in relation to the children. 

3. My concern when the matter first came before the Court was that the children might be removed from Australia by Mr Allard and, under the cover of his diplomatic privileges, the children taken with him to the Country E, where he was at that point scheduled to go on a posting and to which he has now gone.  There is no doubt, in my opinion, that this Court had jurisdiction to deal with the children, even if not the father of the children and potentially the mother of the children, if she were part of Mr Allard’s domestic household at the relevant time.  The Court had jurisdiction to deal with the children because they were in Australia, and under the Family Law Act, that is enough in itself to constitute a basis for jurisdiction. 

4. I note in the proceedings before me today that Mr Allard does not (and I accept these are the terms that his lawyer was instructed to present) consent to the jurisdiction and has, in fact, commenced proceedings in France in D Town and has filed a petition for divorce.  That petition apparently was filed in January this year, but an order in the nature of a summons or request to attend for conciliation before some official or judge of that court only issued from the court in D Town on 14 April 2015.  I am satisfied about that because of the documents tendered by Ms Heinze on Mr Allard’s instructions together with a translation of the orders involved. 

5. It would appear, therefore, that the first action of which I am aware taken by the French court occurred some time after proceedings were initiated in this Court on 10 March 2015.  It appears that, notwithstanding my drawing to the attention of Ms Heinze, and, again, no criticism at all is intended of her in this regard, that there is no current application by Mr Allard in this Court to stay the proceedings pending the completion of the proceedings in France.  Equally, I should say by way of balance that so far as I am aware and I would have been made aware, there is no application made by Ms Allard at this point in the court at D Town in France to stay those proceedings, given the proceedings afoot in this country.

6. In brief, the marriage between Mr Allard and Ms Allard disintegrated in recent times, leading in part to Ms Allard leaving Mr Allard and commencing residence in Australia with a new partner, with whom she is still currently living.  I say that without any intention to suggest that it will be anything other than permanent.  The children are living with her.  Mr Allard had resisted invitations from this Court to participate in these proceedings and to submit to the jurisdiction of the Court and apparently continues to do so, at least to the extent that he does not consent to the jurisdiction.  The Ambassador from the European Community neglected or failed or refused (whichever it may be) to waive diplomatic immunity, which would have given this Court immediate jurisdiction over Mr Allard. 

7. The original processes in this Court sought, among other things, the restraint of Mr Allard from removing the children from Australia, and while this may seem to have been a fairly ordinary and regulation approach to the matter, given that the orders could not be binding on Mr Allard, this was not an effective way of proceeding, nor would this Court have had jurisdiction to issue those orders sought. 

8. Nevertheless, the Court does have power to make orders in relation to the children, and now that Mr Allard is no longer in Australia as a diplomatic representative of the European Community, the immunity that previously existed for him has now disappeared.  Hence, he is also subject to this Court, at least to the extent that orders might be made and those orders would then be binding upon him in personam. 

9. It remains to be seen, I suppose, whether Ms Allard seeks to register these orders in France, and if she does, what application, if any, might be made by Mr Allard to the French court in relation to such proposed registration, whether it be to resist the registration or to seek to stay any proceedings that Ms Allard might want to undertake in this Court.  I might add that relevantly he, of course, would need to bring proceedings in this Court to stay the proceedings in this Court, just as Ms Allard may seek to bring proceedings in the French court to stay proceedings in that court if it became necessary to do so. 

10. The reality of the situation is that the children will continue to remain in Australia.  I am informed by the Independent Children's Lawyer that she has had contact with Mr Allard and that Mr Allard does not oppose that course of action and obviously was aware that that information would be conveyed to this Court by Ms Smithies.  To the extent that I do not have formal evidence to that effect, I accept that the conversation that Ms Smithies had with Mr Allard at least demonstrates on his part a desire to inform the Court of the information referred to. 

11. It is not inconsistent with the information that is conveyed to me by his legal representative in this Court, and I note that, notwithstanding the fact that she might reasonably have withdrawn at the commencement of today’s proceedings, Ms Heinze chose to remain in Court and I have afforded her at each stage in the proceedings an opportunity to intervene, if she wished to do so.  At no point did she ask to cross-examine the Independent Children's Lawyer about the terms of the conversation with the respondent. 

12. The Independent Children's Lawyer has also had the opportunity of speaking to the children, and it appears from her report to the Court, which I note, again, is not in the form formally of evidence but which, nevertheless, for these purposes I am prepared to accept, indicates that the children want to remain in Australia with their mother, that they would like to see their father in the Country E of America but are afraid that, if they should do so, they may not be returned to Australia. 

13. And the father for his part wants to see the children and would like to have an opportunity of spending time with them.  I accept from the evidence given today orally by the children’s mother that he does see the children in one sense every day or almost every day via Skype and that on occasions those conversations might occur for periods up to one hour. 

14. For her part, the mother in her evidence has indicated that she does not oppose the father’s having time with the children, that she would like to encourage the children to have a relationship with their father, that if appropriate safeguards could be put in place to enable him to see the children without there being any potential for him to remove the children from Australia and from her care, then she would be positive and, indeed, forthcoming about making such arrangements. 

15. She is, however, logically and reasonably in the circumstances reticent about letting the children go to the Country E, given that in the Country E now Mr Allard would enjoy diplomatic immunity, and any attempt to approach the courts in the Country E about an order from Australia registered in the Country E may well fall upon the same jurisdictional problems that beset this Court in Australia at the commencement of these proceedings. 

16. There appears to be no opposition from Mr Allard to the children’s living with their mother, and there is no matter raised by him, notwithstanding he has now had the opportunity to do so and was aware of the nature of these proceedings, about any of the issues that would be relevant for the consideration of their best interests under s 60CC of the Family Law Act 1975.  In particular, he has raised no concerns about the current living arrangements for the children, the involvement of the mother’s new partner or the ability of the mother properly to care for the children.  He has not raised any matters relating to any concern about the schools that the children are attending or the activities in which they engage, and, indeed, it is obvious that he is aware of some of those activities because he has contributed some funds towards them at the request of the children. 

17. He has failed, however, to make any formal contribution to child support, and moreover, notwithstanding an order made by me on the last occasion relating to his surrendering of the children’s passports at least until completion of the proceedings, has instructed his solicitor, so she informs me, that the passports which she now has in her possession should be returned to the French consulate in Canberra.  I have indicated to those in Court this day that, in my opinion, it is appropriate to determine that the passports are, in fact, the property of the French Government and the French Government is entitled to hold such passports or to require their return from someone who holds them contrary or, at least, not in conformity with the original terms of the issue of the passports. 

18. Such an arrangement whereby the passports were returned to the French consulate would not prevent Ms Allard from making an application in her own right for passports for the children as French citizens and herself as a French citizen.  However, she points out through her counsel, and I accept, that if the children were to leave Australia at this point, it is improbable that they would be able to return to Australia, at least until their mother’s status in this country had been regularised to the extent that she be granted permanent residence.  In other words, if the children leave, it would disrupt, if not destroy, their own status as permanent residents of Australia.  Similarly, their mother’s leaving Australia would have the same effect, and I accept that those are serious concerns and proper restraints on the mother’s leaving Australia. 

19. I remain to some extent concerned about the possibility that orders restraining Mr Allard from removing the children from Australia might be circumvented, at least if he were prepared to proceed in defiance of such orders, by his simply arriving at an airport in Australia with the children with valid passports and a demand that he be allowed to leave Australia because of his diplomatic status.  Nevertheless, it seems to me that the children should be placed on the PACE alert list at all airports and points of departure in Australia, and that, in practical terms, that will provide some reassurance that the children will not leave Australia without at least there being some alert registered, which in turn may involve appropriate orders of restraint, even at that remote time.

20. I might add that if it were to be the case that Mr Allard should come to Australia and attempt to leave with the children, in my opinion, this Court would have – and does have at present – jurisdiction to restrain him from doing so, and that it would in an appropriate case be an authorised restraint of him from leaving Australia with the children.

21. I have considered the information I have available to me, mainly from the material provided by the mother, and noting the fact that the father has chosen not to provide information to me about either his intentions in relation to the children or alternatively any concerns or reservations he has about the mother’s care of the children. 

22. It is necessary that I should first consider, as is the parenting order, whether I should accept that the presumption of equal shared parental responsibility would apply in these circumstances.  That presumption, which applies under the Family Law Act, is subject to being rebutted in a number of different ways.  First, if there is violence then the presumption may be rebutted.  Second, if the matter were an interim application – which it no longer is – then it may be rebutted.  The situation further is that if it would be in the best interests of the children that the presumption should be rebutted, then indeed the Court, if it is so satisfied, may appropriately consider then the presumption.  Section 61DA imposes that presumption. 

23. In this case, taking account of the best interests of the children without necessarily making findings in relation to the question of family violence – which is s 61DA(2)(b) – it seems to me to be impossible to contemplate that the parties could exercise equal shared parental responsibility in relation to the children in circumstances where they live in different countries, that there are still issues between them as exemplified by the existing proceedings in the French Court, as well as this Court, about what would be in the bests interests of the children, and when there is at least a substantial risk that if the father had parental responsibility, either shared or sole, that the children may be removed from this country without the mother’s consent and contrary to an order of this Court. 

24. I say that in regard to the fact that there is some evidence from the past proceedings in this Court that the father will not obey orders of this Court, and in particular, I note that on this day – notwithstanding that he was aware of the nature of the proceedings – the only substantive submission that his counsel was instructed to make to this Court was that he did not consent to the jurisdiction.

25. For all of those reasons, and in part because of the issue of family violence, and in particular the example of such violence that appears in the evidence before me in affidavits about his conduct in apparently breaking into the house in which the mother was living and pursuing her and removing from her her telephone by force, it seems to me that the presumption is rebutted and I propose to make an order that the mother would have sole parental responsibility for the children.

26. That, however, is not an unqualified thing, in that it is obviously in the interests of the children and certainly a proper matter for the responsibility of both parents that the father should be able to receive from time to time, at his expense and at his request, information about the children from the children’s schools, and that he be able to communicate with and receive, again at his request and at his expense, information from medical practitioners treating the children about the nature of any illness that they are being treated for and the prescriptions for the treatment of the children in the future.  I will make orders accordingly.

27. The children should obviously, in the same context, live with their mother, and it is appropriate in the light of what the mother has said that the children might at some point be able to spend time with their father. This is limited by the circumstances that I have outlined above, and I think is probably best recorded in the way in which it appears in the minutes of orders sought by the applicant mother, that the children spend time with the father as agreed by the parties or as ordered by the Court.

28. Although the orders that I make this day will be in the nature of final orders, it seems sensible that the father should, if he is prepared to accept the jurisdiction of this Court, seek orders at some point in the future in which he outlines what time he wants to spend with the children, how their interests can be protected and safeguarded, and how the terms of the orders of this Court can be safely agreed as being binding on him and preventing him from doing things contrary to those orders.  That is a matter for him in due course.  For the present time the orders as sought represent in my opinion an appropriate recognition of the fact that the parents may well reach agreement at some point. They appear to have similar objectives about the children, and in those circumstances one hopes that the children will be able to continue to have, over the years, a physical relationship with their father, as well as an electronic one which they are currently enjoying.

1. I note in this regard that the Independent Children's Lawyer quite properly has submitted to me that the proceedings might be better adjourned to another day to enable the father to enter into negotiations about the sorts of orders that might be more appropriately, so far as the father is concerned, at least, made about the children.  It might also, she suggests – and I accept this is made in an appropriate and sincere way – result in the withdrawal or discharge of the French proceedings and the return of certainty to both parents and to the children for the future.  The objective of certainty is important.  It will be useful if the French proceedings were not potentially competitive proceedings.  I am unable, however, to either require the father to engage in such a process, nor do I harbour any, at this point, optimism that he would engage in such negotiations given his failure in the past, and even today, to come to this Court to try to make some negotiated conclusion to the matters that are in issue.

2. I return briefly to consider the questions that I have to take into account in deciding what would be in the best interests of the children.  I note that in rejecting the proposition that there should be equal shared parental responsibility, that I am not obliged to consider whether it would be practicable and in the children’s best interests that they should spend half their time with each of their parents, which clearly would not be practicable in this case in any event, given that they live in two different countries, or that they spend substantial or significant time with each parent as that is defined in the Act for precisely the same reasons.

3. I am, however, obliged to take into account in determining what is in the best interests the following matters, or some of the following matters. I choose not to mention all of them, in the sense that some are not applicable in the nature of these proceedings. There are two primary considerations, and they are the benefit to the children of having a meaningful relationship with both of their parents, and the need to protect the children from physical or psychological harm, from being exposed to or subjected to abuse, neglect, or family violence. That is in s 60CC (2). Of those two matters, the greater weight is to be given to the protection of the children as set out in paragraph s 60CC(2)(b).

4. In this regard, it seems to me that there is a genuine and appropriate concern that the children might suffer, not physical necessarily, but psychological harm or emotional harm if they were to be placed in a situation where they might be removed by their father from Australia without their mother’s consent.  To the extent that that is a factor to be taken into account it reinforces, in my mind, that the children’s best interests would be served by the sorts of orders that I have indicated previously that I propose to make.

5. In addition, when I look to the question of the benefit to the children in having a meaningful relationship with both of their parents, I note that that is an objective that both parents share.  I note also that the mother, notwithstanding the difficulties that have been experienced so far in this litigation and the pending proceedings in France, is determined that the children should have that relationship, and she is to be commended for facilitating on a continuing basis the children’s almost daily contact with their father by electronic means. 

6. I note also that in response to questions during the course of the proceedings she indicated a willingness to allow the father to have contact with the children in Australia on a more substantial basis, provided that the appropriate safeguards could be put in place. 

7. It is interesting that the section of the Act refers not to the fact that the children should have a meaningful relationship with both of their parents, but that the consideration for the Court should be the benefit to the children in having a meaningful relationship.  In my opinion, the benefit for the children in having a meaningful relationship with their father must be qualified by the overriding concern about their safety, to the extent that that may be represented by some potential possibility or threat to remove the children from their mother without her consent.  The two things must be balanced.

8. I accept in the limited circumstances of this matter, and in consideration of the expense that would be associated with a different course of action, that the views of the children have been accurately expressed by the Independent Children's Lawyer.  I note that her obligation under the Family Law Act is to look after the best interest of the children, not to represent them personally.  I am saying that for the benefit of a foreign court if it should happen to read this judgment at some point. 

9. The views expressed by the Independent Children's Lawyer include the fact that they would like to spend time with their father, but the strong concern and view that they should live in Australia and with their mother.  In such circumstances, I accept that as a factor in support of the orders proposed by the mother. 

10. I also look at the nature of the relationship of the children with each of the parents, and in particular note that there does not appear on the part of the father to be any opposition to the children continuing a relationship with their mother which, by definition, in the circumstances of this matter, must be somewhat closer than their relationship with their father.  That is not to diminish the nature of the relationship of the children with their father, but rather to make the pragmatic comment that the children have spent more time with their mother, are more closely aligned and allied with her in these proceedings, and that it is appropriate that that relationship should remain as the dominant and primary one in these circumstances. 

11. I note that the children’s father has failed to take the opportunity to participate in making decisions about issues relating to the children by his failure even this day to continue to participate in the proceedings about the children.  I note that he has, however, continued to communicate with them, and that is to his credit in the light of all of the circumstances of this case.

12. He has, however, failed to fulfil his parental obligations to maintain the children to date, although he has expressed apparently a willingness to do so in the future.  I have no power at this point to make any order that would compel him to accept the responsibilities which are clearly his in this regard, but I do note that he has failed to comply with them at least to this extent and to this time.  If the children were to both be the subject of the orders that have been foreshadowed, then there would be no change in their current circumstances although the present arrangements whereby the father is living in America are obviously a change from those pertaining to the children until relatively recently. 

13. That change, however, is brought about not by orders of this Court but rather by the acceptance of the father of his posting to Country E.  I say that again without any criticism of him but merely as a fact that his actions have in fact brought about the separation of the children from him rather than any other thing at this point. 

14. There are difficulties and expenses associated with the children spending time with their father which I have outlined above and I do not propose to reiterate. 

15. I am satisfied that each of the children’s parents is capable of providing for the needs of the children including their emotional and intellectual needs and, in particular, I am satisfied that their mother is able to do that on a primary basis in Australia. 

16. I have looked to other questions of culture and traditions and I am satisfied that this is a factor which will not be ignored whether the children were in the care of their mother or their father.  I say that on the basis not so much of any direct evidence but rather the acceptance by both parents of their current nationality and status and the fact that the children have had a rich environment in which to grow up in the past by being exposed to a number of different cultures.

17. I am concerned that the father’s attitude to his responsibilities of parenthood has been missing to some extent in relation to these proceedings.  I accept that he is entitled, or was entitled when in Australia, to claim diplomatic immunity and hence to avoid any orders of this Court.  However, that prevented this Court from properly considering his point of view and now that he has left the country and is no longer, to some extent, restricted by those diplomatic ties, he has chosen for whatever reason not to put evidence before this Court.  It is unfortunate and possibly represents, on his part, a degree of arrogance although it is difficult to understand precisely how that might be best interpreted. 

18. There have been issues relating to family violence but they are unlikely to be a practical concern in the future given the separation geographically of both parents. 

19. In making the orders that I propose to make, I recognise that such orders may nevertheless give rise to further proceedings in the future.  However, it seems to me that it is in the interests of the children that if circumstances can be generated which will enable their proper security and protection, that there should be some variation to the orders made and I acknowledge that in terms of making the orders that I do. 

20. I otherwise do not believe there are any other circumstances which are relevant to the orders. I note, for the purposes of any person who is not a lawyer in reading these reasons for judgment, that the considerations I have taken into account have occurred roughly in the order that they are set out under s 60CC(3) of the Family Law Act and the preceding section, s 60CC(2).

ORDERS DELIVERED

1. I say by way of supplementary reasons that the order for costs is made pursuant to s 117 of the Family Law Act which, although prescribing primarily that each party shall bear his or her own costs, provides that if the court considers it is appropriate to do so, it may make an order about costs or for costs, having taken account of the matters that are set out under the subsection (2A) of s 117.

2. I have limited information about the financial circumstances of each of the parties to these proceedings except that the current occupation of the mother means that her position is necessarily significantly inferior to that of the husband’s whose position as a diplomatic representative in Country E should enable him to fund any appropriate order for costs. 

3. So far as I am aware, neither party is in receipt of assistance by way of Legal Aid. 

4. The father, in these proceedings, has consistently refused to acknowledge the jurisdiction of this court or to participate in the proceedings.  And, more particularly, although I am satisfied that he was aware that there were proceedings before this court on 15 April 2015, chose not to attend those proceedings, necessitating the adjournment of the proceedings to this point to ensure that he was well aware of the consequences of his failure to participate. 

5. I am satisfied for these reasons, which includes the father’s conduct, and that these proceedings were necessitated by the failure of a party to come – in this case, Mr Allard, to come to this court to – either in person or through his counsel – to present his side of the proceedings, that there should be an order for costs. 

6. I note in passing that the respondent has been wholly unsuccessful in these proceedings and I am not aware of any offer to settle the matter that might have affected my determination otherwise. 

7. The matter is removed from the pending cases list.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice delivered on 25 May 2015.

Associate:

Date:  24 June 2015