Bale-Sutch and Bale-Sutch (No. 2)

[2008] FamCA 737

FAMILY COURT OF AUSTRALIA

BALE-SUTCH & BALE-SUTCH (NO. 2) [2008] FamCA 737

FAMILY LAW – CHILDREN – Recovery order – husband pay wife’s costs of this day

Family Law Act 1975 (Cth)

APPLICANT: Ms Bale-Sutch

RESPONDENT: Mr Bale-Sutch

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 3800 of 2007

DATE DELIVERED: 21 August 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 21 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Mercader

SOLICITOR FOR THE APPLICANT: Mercader Barristers & Solicitors

Orders

1. That the wife be at liberty to proceed forthwith in the absence of formal service upon the husband.

2. That pursuant to s.67U of the Family Law Act 1975 a Recovery Order issue authorising and directing the Marshal, Deputy Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all of the States and Territories of the Commonwealth of Australia to find and recover the children, THE OLDER SON born … December 1997 and THE YOUNGER SON born … February 2000 and to deliver the said children to the wife forthwith, she being the person with whom the children live pursuant to orders made in the Federal Magistrates Court on 8 March 2008.

3. That the application in a case filed 18 August 2008 be otherwise adjourned to 2.15pm on 24 October 2008 in relation to the issues not otherwise dealt with by these orders.

4. That until further order, paragraph 3(b) and (c) of the orders made on 27 May 2008 are suspended.

5. That the letter from McCormack & Co dated 21 August 2008 be marked “Exhibit A” and the Notice of Order of the Ringwood Magistrates Court dated 19 August 2008 be marked “Exhibit B” and the exhibits remain on the court file.

6. That my reasons this day be transcribed and be placed on the court file.

7. That the husband pay the wife’s costs of $730 of these proceedings.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 3800 of 2007

MS BALE-SUTCH

Applicant

And

MR BALE-SUTCH

Respondent

REASONS FOR JUDGMENT

1. This is an application by the wife filed on 19 August 2008.  The first order sought seeks that the mother proceed to apply for orders on an ex parte basis.  However, there appears on the court file an affidavit by a Mr TE - or ET, I am not sure, because of the way the affidavit is constructed - and it does not indicate that he is a process server but I have been told that he is a friend of the wife, who says that at 11.30 pm on 19 August he left a copy of an application and an affidavit by the wife with the sister, presumably of the husband, and the original in a mailbox.  I am not at all comfortable in saying that the documents have been brought to the attention of the husband but in many respects, having regard to the nature of the application, it does not matter.

2. The affidavit of the wife accompanying the application was filed on 19 August 2008.  It sets out the basis upon which the application itself is sought.  At 10 o'clock today, I had the husband called outside the court and there has been no response.  There is no material on the file to indicate that he wishes to participate in the proceedings.

3. Interestingly, I have been handed a faxed letter from McCormack and Co sent this morning, indicating that Mr McCormack is the independent children's lawyer and that he acknowledges service of an application for a recovery order returnable this day.  It does not say when he was delivered with a copy of the application and in many respects it does not matter.  He indicates that having regard to the fact that there is no funding for him to participate, he will not be making any appearance.

4. This case is about two children, an older son born in December 1997, and a younger son, born in February 2000.  I am familiar with the matter, having regard to the fact that I endeavoured to start the first day of a less adversarial trial recently and got nowhere.  I recall having fixed the matter for October.

5. On 27 May this year, Senior Registrar FitzGibbon made orders which on their face appear to have been contested.  The mother and the independent children's lawyer were represented and the father appeared in person. The effect of that hearing was that the father was to spend time with the children on each alternate weekend from 10 am Saturday until 6 pm on Sunday after 31 May 2008.  That seems to be the order that stands. 

6. The affidavit of the mother refers to the fact that the weekend of Saturday, 9 and 10 August would have been the father's weekend with the children under those orders.  She annexes to her affidavit various medical certificates indicating that the younger son and, in turn, she, were ill.  She said to me in oral evidence that she spoke to the father on 7 August, telling him of the fact that she was at the hospital and the child was ill and that his response was that that was no excuse.  She then said that she offered him the next weekend and his response was that she would have to follow the court order.  It is perhaps a little unfortunate that that does not appear in the affidavit of evidence that she filed because it gives a slightly different picture to the one she painted.

7. On the Friday morning of 8 August 2008, she said that she received a text message in which he said, "It's all right to bring the boys on the following weekend."  To a very large degree, that is the message that the paragraph in the affidavit conveys but it would have been better for it to have been accurately stated.

8. As a consequence of the message, she went to the handover point which is the Southern Cross station on 16 August 2008 to meet the husband.  She said he did not say anything but was acting strangely.  She asked him when he was going to bring the children back and he said that he would let her know and that he would text her.  She said that on the following day which was 17 August, she received no word from him other than a text message that said, "Won't be able to meet you today, cannot go to Southern Cross."  There was no phone call and no other details in the message.  She said that as a precaution, she went to Southern Cross station on 17 August 2008 and there was no-one there.

9. Her evidence is that since that time, the children have not been returned to her pursuant to the orders of the senior registrar.  In addition, inquiries that she has made have been unsuccessful.

10. What is disturbing in this case is that on 19 August, which was Tuesday of this week, the husband was to appear before the Ringwood Magistrates Court.  According to the affidavit of the wife, the purpose of that hearing was relating to charges laid by the police against him for breach of an intervention order and threatening to kill, as well as an assault.  She said that these charges resulted from the injury he inflicted on her, witnessed by the children. 

11. Her solicitor has handed to me today what appears to be a printout of an order made at the Ringwood Magistrates Court. Before setting that out, the wife told me that the husband did not attend the court at Ringwood but that he was represented by a lawyer.  She does not seem to have had any understanding of exactly what happened in the courtroom but if the document that I have been handed and which I will mark as an exhibit is an indication, it reads as follows:

    Order a warrant to arrest to issue for the apprehension of the defendant who fails to appear on bail.  Adjourn to a date to be fixed at Ringwood Magistrates Court.  Defendant's undertaking of bail is forfeited.

12. There is no reference in the document to the husband being represented.

13. The charge shown on that document is that the husband at Broadmeadows between June 2007 and July 2007 failed to comply with an intensive corrections order which is somewhat inconsistent with the reference by the wife but in any event, if my interpretation of the document is right, then the husband was given an opportunity at some stage or other in 2007 to avoid a period of imprisonment and failed to comply with his obligations.  As such, presumably there is a police officer wandering around the state looking for the husband to arrest him and to take him into custody.

14. The impact that that will have on the children's orders will depend I suppose on whether or not there is a prospect that the husband would be given bail if he is arrested.  One would presume that if he is arrested, having breached his bail, as I have described it, then he will have some significant problems getting bail again.  On that basis, the children must be seen to be at some risk.  That is obviously leaving aside any question about the fact that they should have been returned to their mother pursuant to the orders in any event.

15. On those bases alone, I am satisfied that it is appropriate to issue a recovery order and that is what I propose to do.  The application, however, goes on to seek some other orders.  The first of the ancillary orders is that the court issue a warrant pursuant to section 65Q to arrest the father.  There is no pending application that he be dealt with for contravention of the orders and as I indicated, it would be inappropriate to have him arrested without that application being filed to indicate to him and to the court that that is the course of action that the wife proposes.  Accordingly, I decline to issue that warrant.  Apart from anything else, I would suspect the husband has some problems, having regard to the fact that the Ringwood Magistrates Court requires his attendance and he may be in custody in respect of that issue.

16. The next ancillary matter is that the wife seeks an order that paragraph 3(b) of the senior registrar's order made on 27 May 2008 be varied so that the time that the husband spends with the children is to take place at Gordon Care Contact Centre or any other available contact centre.  At this stage, that would be inappropriate, having regard to the fact that I do not know whether the contact centre can take the case, but equally, I do not know whether the husband is going to be able to participate if in fact he is in custody.  On that basis, it would be inappropriate for me to make that order.  It seems more important, however, to at least suspend the current parenting order because of the unknown issues and to have the matter returnable in October as I had originally planned. 

17. The next ancillary order sought was that order 7 of the senior registrar made on 27 May 2008 be discharged.  That order was made by consent.  It is an order that the mother and her servants and agents be restrained from entering upon the father's property at K.  The explanation for why that order is sought is so that the mother in the future can check on the welfare of the children.  There is absolutely no evidence in the affidavit material that would justify me making that order and on that basis alone, I should decline to make it.  In any event, the father is not here and it is not appropriate that something like that should be done on an ex parte basis.

18. The next ancillary order sought relates to costs against the father for seeking the return of the children.  The solicitor for the mother seeks $1500 but was unable to explain to me how that was arrived at, other than by reference to the solicitors' remuneration order but of course it is schedule 3 of the Family Law Rules that applies.  As best I can work out, there are about three hours or thereabouts of justifiable instructions, the preparation of an affidavit and some photocopying and at best, I would have thought that the costs under the scale are about $730.  That is not to say that that is the appropriate amount to charge a client who has signed a costs agreement, it is simply based on the lack of material I have.  It is the appropriate sort of order to make.

19. Section 117 of the Family Law Act 1975 (Cth) (“the Act”), however, governs the question of the payment of costs. It says that each party should pay their own costs, except in circumstances where there is a justification for the departure from that principle. If the court decides to depart from that principle, it must look at the provisions of s 117(2A). That particular provision requires a court to look at all of the various circumstances of each of the parties. Those circumstances include the financial circumstances of each of the parties to the proceedings. I do not know what the financial circumstances of the parties are.

20. The next issue is whether or not any party is represented by Legal Aid and I recall from previous discussions that neither was.

21. The third consideration is the conduct of the parties to the proceedings, including the issues associated with preparation of documents, discovery and so forth.  In this case, the conduct of the parties can also include the failure to comply with an order and that is specifically set out in the fourth consideration.  I am told in this case that this is the second time an application for a recovery order has been made.  In those circumstances, it is justifiable to depart from the rule.  Having departed from the rule that each party pays their own costs, it is a question of considering all of those factors, and notwithstanding I do not know what the financial position of the husband may be, it is clear that the overwhelming reason the wife is here today is because of his conduct.

22. The costs order is not intended to punish someone but rather compensate the person who has had to go to the trouble of resorting to the law to regulate the lives of these children in circumstances where the order is already very clear.  In those circumstances, I propose to exercise my discretion and make an order that the father pay the mother's costs of $730.

I certify that the preceding Twenty Two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  26 August 2008