Carlson and Fluvium (No 2)

[2011] FamCA 195

FAMILY COURT OF AUSTRALIA

CARLSON & FLUVIUM (NO 2) [2011] FamCA 195

FAMILY LAW – CHILDREN – Where an order was made over nine months ago for the child to spend time with the mother – The mother lives overseas – Where the order provided for the maternal grandmother to act as travel companion to child – Where the maternal grandmother has concerns as to the father’s behaviour and now refuses to facilitate the visit – Mother’s application to change travel companion dismissed – If maternal grandmother elects to accompany child, an order to be made restraining the father from approaching the maternal grandmother

FAMILY LAW – CHILDREN – Where an order was made over a month ago for the father to provide certain documentation – Where the father has previously denied the existence of this material – No such material has been received in compliance with the order – Father is to forward all correspondence he has had with any Canadian government department involving both the children of the relationship

MOTHER’S APPLICATION IN A CASE FILED 15 MARCH 2011

APPLICANT: Mr Carlson

RESPONDENT: Ms Fluvium

INDEPENDENT CHILDREN’S LAWYER: Ms Leisa Toomey, Solicitor

FILE NUMBER: BRC 9490 of 2008

DATE DELIVERED: 24 March 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 23 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: The Applicant Father appearing by telephone (not legally represented)

COUNSEL FOR THE RESPONDENT: The Respondent Mother appearing by telephone (not legally represented)

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Leisa Toomey, Solicitor of Schultz Toomey O'Brien Lawyers appearing as the Independent Children's Lawyer

Orders

IT IS ORDERED THAT:

1. The Mother’s Application in Form 2 filed 15 March 2011 is dismissed.

IT IS FURTHER ORDERED THAT

1. By 4.00 pm Friday 25 March 2011 the Father is to forward to the Independent Children’s Lawyer by email transmission or deliver by hard copy all correspondence he has forwarded to any Canadian government department, whether federal or provincial, or the Canadian Consulate relating to any issue involving the child, D born … June 2006 and/or the child, K born … January 2008, from 17 October 2008 (being the date the Father instituted proceedings in this jurisdiction) until the present time.

2. By 4.00 pm Friday 25 March 2011 the Father is to forward to the Independent Children’s Lawyer by email transmission or deliver by hard copy all correspondence he has received from any Canadian government department, whether federal or provincial, or the Canadian Consulate relating to any issue involving the child D and/or K from 17 October 2008 until the present time.

3. The Independent Children’s Lawyer is requested to separate such correspondence into three bundles as follows:

   (i)any correspondence or other form of documentation involving

   solely the child D;

   (ii)any correspondence or other form of documentation involving

   both the children D and K; and

   (iii)any correspondence or other form of documentation involving

   solely the child K.

IT IS NOTED that publication of this judgment under the pseudonym Carlson v Fluvium (No 2) is approved 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

REASONS FOR JUDGMENT

1. On the 28 May 2010 for reasons given at the time, I made orders that, subject to certain conditions, the child of the parties, D, born in June 2006, spend time with his mother in Canada.

2. Paragraph 5 of those orders provide that D was to be collected and returned to Australia by his maternal grandmother.

3. Paragraph 6 provided:

   “6.The Mother is to liaise with the Independent Children’s Lawyer and advise the time the maternal grandmother is able to collect [D] from the counselling section of the Family Court of Australia, Commonwealth Law Courts, Brisbane.”

4. On the 14 February 2010, prior to the making of these orders, the maternal grandmother had sworn an affidavit.  That affidavit is annexed to the Mother’s affidavit filed 15 February 2010.  In her brief affidavit the maternal grandmother deposed:

   “2.I agree to be the third party to accompany [D] to Canada to spend time with his mother and brothers, and to return [D] to Australia.

   3.I agree to either an exchange with the paternal grandmother […] at the airport or with [D’s] father, [Mr Carlson] at the police station nearest to the airport.

   4.[D] and I have shared a very close bond prior to his departure and we have maintained regular contact via Skype over the past fifteen months.”

5. It would appear from the evidence that both the Mother and the maternal grandmother have engaged with the subject child by Skype on a reasonably regular basis.

6. On the 21 January 2011 the maternal grandmother swore a further affidavit.  This affidavit is to be found as Annexure “A” to the Mother’s affidavit filed

   
   

   31 January 2011.

7. In this affidavit she deposes:

   “2.In early 2010, I agreed to facilitate [D’s] return trip to Canada to reunite with his mother, brothers and extended Canadian family and with regret, I can no longer agree to facilitate this.

   3.On November 12, 2008, I sent [Mr Carlson] an email requesting a date and time to start regular communication with [D], from my home, since I live 25 kilometres away from my daughter, and especially in the winter months, it is extremely difficult to commit to this drive.

   4.On November 15, 2008, I sent [Mr Carlson] another email, as I had not had any response from him.

   5.On November 18, 2008, I was told by [Mr Carlson] that I could not communicate with [D] outside of his and his mother’s regularly scheduled webcam access times, and was told not to contact [Mr Carlson] again.

   6.For the past 2 years, I have spoken with [D] over the webcam whenever possible, during his regularly scheduled webcam access times with his mother.

   7.In June 2010, I specifically arranged to be present at my daughter’s home during one of her regularly scheduled webcam contacts with [D], to begin the process of creating a smooth transition for [D] regarding his exciting upcoming airplane ride with me to Canada.

   8.My genuine and sincere attempt to address [D’s] best interest was met with shouts of hostility and aggression from
   [Mr Carlson], in front of [D], and despite reasonable requests that he help to create a smooth transition for [D], he cut off the webcam contact.

   9.Approximately 2 weeks later, hoping that [Mr Carlson] had sufficient time to reconsider his actions and would this time cooperate, as we had done for [D’s] transition to Australia in 2008, I once more attempted to discuss the upcoming airplane ride with [D] and it was met with more hostility and contempt from [Mr Carlson], with him physically standing in front of the webcam camera, yelling at me, again in front of [D].

   10.In order to protect [D] from these aggressive outbursts, and to minimize the negativity that [Mr Carlson] is creating surrounding this exciting reunion with [D’s] mother, brothers and extended Canadian family, I have made and will make no further attempts to discuss this trip with [D], without some guarantee of
   [Mr Carlson’s] full co-operation on this matter.

   11.[Mr Carlson] has filed an affidavit, making statements regarding my behaviour during these webcam communications with my grandson, [D] and I object to these untrue statements.

   12.Recently, [Mr Carlson] filed a Contravention Order in which he asks the court to order that I attend court when I am in Australia.

   13.Given that family violence remains an issue, now attempting to extend to me, the maternal grandmother, through the use of legal bullying and hostility during webcam contact, I believe it is necessary and in [D’s] best interest (and all family members) that a third party facilitate this reunion.”

8. In summary form the maternal grandmother says she has concerns the Father may take steps to detain her in Australia.  He had filed an application seeking certain orders, which if granted, would have that effect.  Presumably, she also has concerns she may be subjected to verbal abuse by the Father.  I note for his part the Father denies he has engaged in such abuse.

9. At a hearing on yesterday’s date I indicated the Court was minded to move of its own motion, to put in place an injunction restraining the Father from approaching within 200 metres of the maternal grandmother, at any time.  For his part, the Father indicated he had no difficulty with the making of an order in these terms.

10. I propose to make an order in these terms but will only do so in the event the maternal grandmother elects to accompany D to and from Canada.  It is pointless to make an order otherwise.

11. The Court would also be minded to move of its own motion to make an order restraining the Father from filing any application in this Court which would have the effect of delaying the departure of the maternal grandmother from Australia in the event she arrives to collect D in accordance with the orders of the 28 May 2010.

12. I indicated on yesterday’s date I was not minded to approve the substitution of Ms M for the maternal grandmother as a person designated to accompany D in his travels to and from Canada.

13. I confirm that decision.

14. The Mother has appended a reference type letter from Ms M’s neighbours and a Town 1 in Canada police clearance report to her affidavit filed on the

    
    

    15 March 2011.

15. Ms M swore an affidavit on the 18 January 2011 which is Annexure “B” to the affidavit of the Mother filed on the 31 January 2011.

16. In her affidavit she deposes she has been a close family friend to Ms Fluvium and her mother since 2002.  She is the mother of a 19 year old daughter and has had experience as a nanny to young children.  At paragraph 5 she deposes:

    “5.I have had the pleasure of being a part of [D’s] life in [Canada], much like an aunt, prior to [D’s] departure to Australia.  I have spent time with the whole family during the summer months and visits to [Town 2 in Canada].  I have been able to mind [D] while his mother, [Ms Fluvium] was in [Town 1 in Canada] for court dates concerning [D].”

17. I proceed on the basis that Ms M is a person of good character with experience with young children.  However, I am not prepared to approve her as a person to accompany D.  My reasons for this are as follows:

    ·D travelled to Australia pursuant to an order of the Canadian Courts more than two years ago in late 2008. 

    ·D is now only four years of age. 

    It follows that he was only two years of age at the time

    
    

    Ms M last saw him.  She has had no interaction with him through Skype transmission in the intervening period.  I have no confidence that the Father would facilitate Skype transmission between Ms M and D but in any event I expect such communication would not be sufficient to allow a bond to redevelop between Ms M and D.

    ·The travelling time is considerable.

    The Mother has annexed an itinerary schedule.  According to that schedule the total flying time to Town 1 in Canada via Los Angeles is 17 and a half hours.  In addition, there would be involved a stop over in Los Angeles of almost six hours.

    There would also be time spent processing through Immigration prior to departing Australia and potentially into the United States and certainly into Canada.

    ·It is far preferable that a close family member travel to Australia to collect D and accompany him.

    ·The Mother and the maternal grandmother appear to be under some misapprehension that there has to be contact with either the Father or the paternal grandmother for the changeover to take place.  What is envisaged is that the Mother or maternal grandmother could liaise with the Independent Children’s Lawyer detailing the airline they are arriving on and the time they are arriving.  It may be they would have to spend overnight in Brisbane but the Independent Children’s Lawyer would arrange a suitable direction to the Father to deliver D to the counselling section of the Family Court in Brisbane at the Commonwealth Law Courts.  The child could be collected from there with no interaction whatsoever from the Father.  The child could then be taken at an appropriate time to the international airport to board a flight to Canada.

18. For the above reasons the application in a case filed by the Mother on the

    
    

    15 March 2011 is dismissed.

Compliance with paragraph 4 of the Order of the

9 February 2011

1. On the 9 February 2011 I made an order in the following terms:

   “4.Within forty-eight (48) hours of the date hereof, the Father to provide to the Independent Children’s Lawyer and a Registrar of this Honourable Court, a copy of any correspondence he has had with any government department in Canada and any response thereto in relation to [D].”

2. No such material has been received by the Registry or by the Independent Children’s Lawyer.

3. Previous directions to this effect have been made.  To the present time the Father has always denied the existence of any such correspondence.  His position on the 23 March 2011 was that there was so much correspondence, it is now impossible for him to comply within the time constraints indicated.  I totally reject the Father’s claims of not having time to produce such documents.

4. There has to be, to my mind, some explanation as to why it is has taken so long for the child’s passport to be renewed.  There is evidence in a number of indicators that the Father has been corresponding with government departments in Canada.  One is the application for the Canadian equivalent of a passport watch.  Another is to be found in the letter from the paternal grandmother of the 16 February 2011 where at paragraph 12 she deposes:

   “12.We have been advised (from Canada) that once [D] arrives in Canada, the mother will seek custody of [D] through a Canadian Court and this will be the last his Australian family will see of him - - -”

   The Father denies knowledge of this letter.  I am extremely cynical of the Father’s denial in this regard.  The Father is aware that his mother had written to the Court in such terms as he was aware a letter been forwarded by a Registrar admonishing the writing of a letter directly to the Judge.

5. The paternal grandmother had written on the 15 February 2011, the previous day, in terms that she was willing to be the one to accompany D.  There seems to be a duplicitous tone in the terms of the letters of the 15 February 2011 and 16 February 2011.

6. I would not contemplate authorising the paternal grandmother to be the one to accompany D. 

7. Throughout the proceedings the Father has shown an almost obsessive determination to frustrate the order of the Court that the child spend time with his mother.  The nature of the Father’s conduct is to be found in many aspects including:

   ·The filing of numerous appeals.

   ·The application for the Canadian equivalent of a passport watch.

8. The Mother has annexed to her affidavit of the 15 February 2010 as Annexure “B” an email she forwarded to the Father on the 2 February 2009.  She reports at that time during a Skype session she had said to D that he would come and see her soon.  She reports the Father saying:

   “Don’t tell him things that aren’t true ---

   and:

   “That is not going to happen.”

9. For present purposes I am minded to accept that those statements were made by the Father as it reflects very much his attitude at all times to the child spending time with his mother in Canada.  I have cautioned the Father that if he is seen in any way to frustrate Court Orders he can expect no leniency in the event that the Court finds he has contravened Court Orders.

10. On the 23 March 2011, for the first time, the Father indicated he has been corresponding with Canadian government departments but asserts he was not obliged to disclose such correspondence as it related to various applications he was intending to make in Canada in relation to the child K.  During the course of yesterday’s hearing he conceded certain of the correspondence related to both children.  This is contrary to what he has informed the Court on previous occasions.  He now pleads there is so much correspondence he will not have time to collate it all prior to the deadline set of Friday morning.  I will extend the time to 4.00 pm Friday.

11. I will reissue the order in the terms as set out at page 3 hereof.

12. I am concerned at the conflicting accounts now given by the Father about dealings he has had with Canadian government agencies.

13. He has at all times strenuously denied that any step that he has taken has led to any delay in the issuing of the Canadian passport for D.

14. In the event there has not been compliance with these orders by 4.00 pm on

    
    

    25 March 2011 the matter is to be again listed before me at 10.00 am on 29 March 2011 for further mention.

15. I note the Mother is a Canadian citizen.  Pursuant to orders of this Court she currently has sole responsibility for D.  I proceed on the basis that under Canadian law, at the very least, she has joint parental responsibility for K.

16. I expect Canadian laws provide for the equivalent of Freedom of Information applications such as are available in this country.  With such an application a citizen can seek to have government files disclosed where there is an interest in doing so.  It is a matter for the Mother whether she wishes to explore that avenue with the Canadian government departments.

17. For the reasons given orders will issue in accordance with the orders set out at page 3 hereof.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry delivered on 24 March 2011.

Associate: 

Date:  24 March 2011