Bletch and Douglas (No. 5)

[2008] FamCA 796

FAMILY COURT OF AUSTRALIA

BLETCH & DOUGLAS (NO. 5) [2008] FamCA 796

FAMILY LAW – CHILDREN – return of child – spend time with

Family Law Act (Cth) 1975

APPLICANT: Ms Douglas

RESPONDENT: Mr Bletch

FILE NUMBER: SYF 2318 of 2003

DATE DELIVERED: 2 September 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 2 September 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Beazley Singleton, Solicitors

RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

1. By consent orders and notations are made in terms of the document titled “Orders” marked Exhibit 1 as set out hereunder:

   “1.The Father return the child […] born […] June 1998 to the Mother at [F Street, T] before 1 pm on 2 September 2008.

   2.The balance of the Mother’s Application and the Father’s reply be stood over to 3 November 2008 for hearing.

   The Court Notes:

   (a)The child’s mobile telephone number in the United States is +1[…].

   (b)The Court notes a Skype program is set up on the Mother’s computer with web camera and that the child has his own Skype address as does the father.”

2. The remainder of the proceedings are adjourned to the Judicial Registrar’s Call-over at 9:30 am on 3 November 2008.

3. Any further documents on which either party seeks to rely are to be filed and served not later than 24 October 2008.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2318 of 2003

MS DOUGLAS

Applicant

And

MR BLETCH

Respondent

REASONS FOR JUDGMENT

1. These are proceedings commenced by an application for a recovery order returnable today.  The father appears in person, the mother is represented.  The parties have had some discussions about issues to do with their compliance with a range of orders that have been made over time in quite significantly contested proceedings.  Two issues have been resolved today, they relate to the child's mobile phone number in the United States and the fact that a Skype program has been set up and established for communication through that medium with the father.  The remaining issue concerning the father was that he had not been given a further assurance that the mother would comply with an obligation of the orders of 2007, whereby if he gives a month's notice he is to have a period of time with the child in the United States.

2. It is an agreed fact that he has given six weeks notice, so he is within the provisions of that arrangement, and he intends to exercise that time I understand between 13 and 27 October this year.  The mother does not formally oppose that, it is just that she will not commit herself to writing in relation to an assurance that she will comply. The mother’s case is that child has been in Australia for the past 3 months there is an issue between the mother and father as to why the child hasn’t done any of the school that work he was meant to have done in the last 3 months and he will be behind when he gets back to America. The new term will start then. The father says the mother provided no books, the mother says that she did.

3. The orders are clear and if the wife was aggrieved about the possibility that the time in the US would be soon after the long period of time in Australia, then she needed to appeal against the order or have the order amended. In the meantime she must comply with the letter of the orders.  For the father's part he has taken matters into his own hands to cause compliance with orders that have been made.  That approach is a recipe for disaster.  By taking that approach he authorises the mother to hold the child hostage as he has, to any perceived breach of the orders. 

4. So the parties need to be very careful about this.  They have probably invested tens of thousands of dollars in court orders.  They are to comply with the letter of the orders unless to do so would endanger a child or themselves. If the standard is set that one will not comply with the orders because he or she thinks the other is or will be in breach, we might as well tear up the orders and their investment will have been wasted.  Retaining a child, as the father has done is a dangerous thing. A Court may well have issued an order to the police to have the child recovered and that has the potential to embarrass the child.  So I would counsel the father against any further repetition of that conduct.

5. There is a principle in the law that says that if somebody is outside the terms of a current order then they cannot take another step in the proceedings until they bring themselves back within the terms of the order. It appears that there are aspects of the existing orders that the mother has also not complied with. Strictly speaking she may well be precluded from enforcing other aspects of the orders. In any event there will be chaos if the parties continue in that vein.  They are obliged to comply with the letter of the orders. 

6. I will make a note that the orders require this time in the USA in October and that the father has given the appropriate notice.

7. The document titled "Orders" is exhibit 1.  By consent I make orders in terms of that document, orders and notations.

   ORDERS DELIVERED

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate: 

Date:  23 September 2008