Carlson and Fluvium (No 2)

[2012] FamCA 1044

FAMILY COURT OF AUSTRALIA

CARLSON & FLUVIUM (NO 2) [2012] FamCA 1044

FAMILY LAW – CHILDREN - Where applications are made for contravention and regarding the implementation of final orders - Where the Mother elected not to continue to participate in any proceedings in Australia during the hearing - Where the Mother owes the Father a debt pursuant to final orders previously made

APPLICANT: Mr Carlson

RESPONDENT: Ms Fluvium

INDEPENDENT CHILDREN’S LAWYER: Ms L. Toomey

FILE NUMBER: BRC 9490 of 2008

DATE DELIVERED: 11 December 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 11 December 2012

REPRESENTATION

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Schultz Toomey O'Brien

Orders

1. The operation of the orders of Justice Kent of 6 February 2012 pertaining to the travel by the child, D, to Canada on 1 January 2013 and all orders pertaining to any further travel by the child on any following dates be suspended until the Respondent Mother, Ms Fluvium, elects to participate in the proceedings by filing a further Application in a Case in relation to the implementation of the orders of 6 February 2012.

2. The Independent Children’s Lawyer be discharged.

1. All other outstanding applications be dismissed and removed from the pending cases list.

Declarations

1. The Respondent Mother, Ms Fluvium, owes the Applicant Father, Mr Carlson, a sum of $781.75 pursuant to the orders of Justice Kent of 6 February 2012 pertaining to the funding of the cost of airfares for the child, D, and an accompanying adult between Canada and Australia following the date of those orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Carlson & Fluvium 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 BRISBANE

FILE NUMBER: BRC 9490 of 2008

Mr Carlson

Applicant

And

Ms Fluvium

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I heard and determined the parenting proceedings between these parties and made final orders on 6 February 2012. Those orders included orders for liberty to apply in circumstances where there was some complexity about the machinery provisions in the orders in circumstances where the Father and the child live in Australia, the Mother lives in Canada, and there was a need for provision for the child’s travel to and from Canada, associated costs of that travel, and in circumstances of his age, the need for an accompanying adult and the cost for that.

2. Part of the final orders that were made included orders for my orders to be registered in Canada, and each party was obliged to do what was necessary for that to occur. At the time of the final stage of the trial leading to those orders, and indeed at the time of the orders themselves, the child was spending time with the Mother in Canada. That time was indeed extended as a consequence of my need to publish reasons and deliver final orders on 6 February 2012.

3. The order in paragraph 7 was then made for the child to return to Australia no later than 30 June 2012. Because of evidence at the trial from the expert psychiatrist, Dr V, as to the possibility, and he stressed possibility and not probability, of the Father adversely reacting to whatever orders I made, Dr V made certain recommendations as to the Father undertaking some therapy, and those matters were the subject of my orders, paragraphs 1 to 6.

4. Those orders, as will be apparent from the reasons, contemplated the Father having the opportunity to undertake such therapy and for a further report to be obtained from Dr V in advance of the child’s potential return on 30 June 2012, to ensure there was no safety issue so far as the child was concerned. The Independent Children’s Lawyer obtained updated evidence from Dr V for that purpose. No such safety issue was identified. There was no reason, therefore, to interfere with the orders so far as the child’s return in June of this year was concerned.

5. Notwithstanding what I have just said, the Mother has repeatedly raised what she asserts to be deficiencies in the therapy undertaken by the Father. The Independent Children’s Lawyer has recently arranged for yet further evidence to be obtained from Dr V, in liaison with the Father’s treating psychiatrist. No concerns of relevance are noted, but more particularly, as I pointed out to the Mother yet again on today’s hearing, the issue about therapy was directed towards any safety issue prior to the child’s return on 30 June 2012. That has passed, the child has returned.

6. The issues raised today, on competing applications, are the Mother’s application that she had sought to have filed seeking a whole range of orders outside of what might be termed machinery orders under the liberty to apply provisions of the final orders. Otherwise, the parties disputed the historical costs to be met by each of them concerning the child’s travel, as had been provided for in the final orders.

7. Following exchanges I had with the parties, Ms Fluvium by telephone and the Father appearing in person, I reconciled that there was an amount owing by Ms Fluvium to Mr Carlson of $781.75 on the basis as discussed in the course of submissions. To the extent that it is required, I will direct that the transcript of today’s exchange be obtained and be incorporated as part of my reasons for the purpose of identifying the method of calculation of that sum.

8. Other than that issue, and what I have referred to as the Mother’s applications for orders well outside the liberty to apply provisions, the other topic for today’s purposes was whether or not the child should be allowed to return to Canada with one Ms J and that the return occur on 30 January 2013, being Ms J’s planned travel from Australia to Canada, rather than what the final orders had provided for the next trip being from 1 January 2013.

9. In the course of the exchanges concerning whether or not the Court should permit Ms J to be the accompanying adult, and the Father’s position that arrangements be made for his own father to be the accompanying adult for the return trip from Canada, and I add, on issues concerning the child’s education whilst in Canada on this visit, Ms Fluvium expressed, in effect, that she regarded this Court as, I think her words were, “…a joke,” and that this Court was apparently content to allow the child to be in the care of, “…a psychopath,” a reference to the Father, yet again a return to the theme of the Father’s psychotherapy as earlier discussed before she terminated her telephone link.

10. Ms Fluvium had suggested that she herself would return with the child from Canada at the end of the forthcoming visit for the purpose of launching proceedings in an Australian Court, however, as has been observed by Ms Toomey, who is the Independent Children’s Lawyer in the matter, and no doubt supported by the Father, it seems to me that there are now real concerns so far as the Mother returning the child at the end of the forthcoming visit, given her expressed views. There is the potential for her, in breach of the orders, to retain the child or to attempt to retain the child in Canada, leading to the potential for yet further Hague proceedings between these parties or the need for Court proceedings to be launched by the Father in Canada. I accept the submission of the Independent Children’s Lawyer that it would not be in the child’s best interests for there to be a delay in his return or an involvement in yet further proceedings in a foreign Court.

11. In those circumstances, it seems to me that it is in the child’s best interests that I suspend the orders so far as travel to Canada is concerned until the Mother chooses to further participate in the proceedings or the machinery of those orders on a legitimate basis.

12. I therefore suspend the order for the child to travel to Canada in respect of the January 2013 period and the orders thereafter with respect to his travel to Canada, pending any further application by the Mother in that respect. Otherwise, the orders for time and communication will remain in place. I will otherwise dismiss all outstanding applications, including the Father’s application for contravention filed 5 September 2012, on the basis that it is declared that there is due and owing by the Mother to the Father the amount of $781.75 in respect of travel expenses.

13. I note the Father’s contravention application included an application with respect to the Mother’s failure to register or to participate in the registration of the subject orders in Canada. The registration has now in fact occurred and the Father recognised the futility of that contravention application, but I place it on record for the purpose of it perhaps indicating the Mother’s attitude so far as the orders of this Court are concerned, and more particularly, the potential intention of the Mother if the child were permitted to travel again to Canada at this time, given in particular the Mother’s attitude at the end of the hearing before me, when she terminated her telephone attendance and indicated that she wished to have nothing more to do with the proceedings in this Court.

14. For those reasons I make the orders set out at the commencement of these reasons as indicated.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 11 December 2012.

Associate:

Date:  13 December 2012