Carlson and Fluvium (No 2)

[2010] FamCA 991

FAMILY COURT OF AUSTRALIA

CARLSON & FLUVIUM (NO. 2) [2010] FamCA 991

FAMILY LAW – CHILDREN – Where interim orders provided for the child to spend one month in Canada with his mother – Where the child’s passport renewal was ordered – Where there was an error in the orders which the father sought to rely upon – Where the father ought to have known it was an error – Where the father’s counsel previously indicated that there was agreement to renew the passport – Where the mother alleges father has contravened orders – Issue of parental responsibility

APPLICANT:

Mr Carlson

RESPONDENT: Ms Fluvium

INDEPENDENT CHILDREN’S LAWYER: Ms Leisa Toomey, Solicitor

FILE NUMBER: BRC 9490 of 2008

DATE DELIVERED: 27 October 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 20 October 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Gray, Solicitor of Richard Gray & Associates appearing for the Applicant Father

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

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Shaw, Solicitor appearing as town agent for the Independent Children’s Lawyer, Ms Leisa Toomey of Schultz Toomey O’Brien Lawyers

Orders

IT IS ORDERED THAT:

1. The Mother’s Contravention Application filed 20 October 2010 and Application in Form 2 filed 29 September 2010 be adjourned to 9.30 am on 9 November 2010 at the Brisbane Registry of the Family Court.

2. The Father’s Contravention Applications filed 22 June 2009 and 2 December 2009 be adjourned to 9.30 am on 9 November 2010 at the Brisbane Registry of the Family Court.

IT IS DIRECTED:

1. Leave is given to the Independent Children’s Lawyer to provide a copy of the reasons for judgment delivered on this date to the Canadian Consulate for their information.

IT IS NOTED that publication of this judgment under the pseudonym Carlson & Fluvium 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. There were no separate reasons given for the orders of 20 October 2010.  I propose to rectify that situation today.

2. There are two issues today that need to be considered.  One is the contravention application filed by the mother, and I’ll be making some observations about that, and the second is the application by the mother, filed on 29 September 2010, which, in summary form, seeks an order that either her mother or herself or the Independent Children’s Lawyer, be given interim guardianship of the child D.

3. I will hear the parties, on those two issues, as to whether we can progress those matters today, but I will firstly summarise by saying, for reasons given on 28 May this year, I made interim orders that the child of the parties, D, born in June 2006, spend one month with his mother in Canada, subject to various conditions, including the lodging of a bond in the sum of A$10,000, into the trust account of the Independent Children’s Lawyer.

4. Pursuant to the terms of the orders, it was further provided that if a child psychologist in Australia reported, by Skype or telephone or any other means, that the child appeared well settled in the Canadian environment, the date for the return of the child could be extended to a total period of three months.  The father lodged an appeal against this decision and sought a stay of the orders, pending the determination of the appeal.  On 20 July this year I made orders in the following terms: 

   It is ordered by consent, that:

   (1)  Within fourteen (14) days of the date of this order, the father is to attend to signing all relevant documents, and doing all acts, including obtaining passport photos, for the renewal of the Australian passport of the child, [D], born […] June 2006.

   RECORDED  :  NOT TRANSCRIBED

5. Order 2 of the orders of 20 July was of this order:

   That in the event the father has not attended to the obligations imposed on him by the terms of order 1 hereof, the matter is to be re-listed at
    9.30 am on 3 August 2010.

   Order 3:

   The father’s application in form 2, filed 14 July 2010, be adjourned to 9.30 am on 3 August at the Brisbane Registry of the Family Court. 

6. Clearly, the reference to the renewal of the “Australian” passport of the child was an error.  The child has never held an Australian passport, nor is he entitled to hold one at this point in time.  The mother is Canadian by birth, and at all times has been a Canadian citizen.  The father is a New Zealander by birth and was a New Zealand citizen at the time of the child’s birth.  The child is entitled to New Zealand citizenship by descent. Since the child’s birth, the father has become an Australian citizen.  The child has previously held a Canadian passport, but it expired last year.  There is no evidence that he has ever held a New Zealand passport.

7. In an application in a case, filed on 2 July 2010, the mother sought orders in the following terms:

   (1) That [the father] will comply with the order of this Court of 28 May 2010, to facilitate [the child’s] visit to his mother, [Ms Fluvium], by applying for a Canadian passport on [the child’s] behalf.

   (2) The application for the passport is to be completed with all necessary attachments, photographs, birth certificate, expired passport, a $40 fee, court order regarding parental responsibility, and court order regarding visit to Canada, and received by the Canadian Consulate‑General in Sydney by 8 July 2010.  The application can be found at Alternatively, if possible, [the child] be given permission by this Court to travel to Canada on his current passport which expired in July 2009.

8. When the matter came before me on 20 July 2010, the application before this Court, filed by the mother on 2 July, was seeking an order that the father do all in his power to renew the Canadian passport.  At the hearing on 20 July 2010, I observed, immediately prior to a morning adjournment, what I was inclined to do was to make procedural orders about the passport issue.  Upon resumption, counsel for the father – this is at the transcript, pages 15, 16 and 17 of that date – observed:

   MR EHLERS: Just starting with those points that your Honour asked me about before we’d left - - -

   - - -

   MR EHLERS:- - - we’ve got a consent, I think.  We’ve had a discussion between the separate rep and myself.  We have an agreement on the passport issue.  We don’t have any issue with signing for a new passport and obtaining a new passport; there’s no problems at all with that.

   HIS HONOUR: All right.

   MR EHLERS: We’re quite willing to do that.

   At transcript, page 17, I observed:

   Well, we’ll settle for the Canadian passport at this stage.

9. Because there had been some earlier discussion as to whether it may be more expeditious to apply for a New Zealand passport, reference was made during that hearing on 20 July 2010 to an email from the mother to the father’s solicitors, which was annexure G to the affidavit of the Independent Children’s Lawyer, Ms Toomey, filed on 20 July 2010.  That email, addressed to the father’s solicitor, Mr Gray, was in the following terms:

   “Since [the child’s] passport is expired [the father] needs to obtain a new one.  He can do this by going online to and downloading a passport application.

   Please provide me with confirmation and verification that the application has been completed and sent by Thursday June 24, 2010 at noon.

   It then takes 15 business days for the passport to be completed.

   In the alternative to above, does [the child] have a current New Zealand passport?

10. In light of the statements made by the father’s counsel, reference in the order of 20 July 2010 to an “Australian passport” was, clearly, an error which was amenable to correction by the application of the slip rule.  On 3 August 2010 I delivered reasons dismissing the father’s application for a stay of the interim orders that the child be permitted to travel to Canada for one month.

11. Order 4 of the orders of 3 August 2010 was in the following terms:

    The father is to deliver to the Independent Children’s Lawyer the renewed Canadian passport for the child, [D], born […] June 2006, within 21 days or such further time as may be extended by the Independent Children’s Lawyer.

12. On 29 September 2010 the mother filed an application with a supporting affidavit.  In that application she sought orders in the following terms:

    1.To ensure that the court order is followed and [the child] is able to visit his mother, the maternal Grandmother, […], have interim guardianship of the child, [D] so that, while in Australia, she can apply and receive [the child’s] passport.

    2.Or that the mother, [Ms Fluvium], be given full parental responsibility for the child, [D], so that she can apply for the child’s passport.

    3.Alternatively, if these options are not acceptable to the court then I ask that the Independent Children’s Lawyer, Leisa Toomey, be given the authority to obtain the child’s passport.”

13. In her affidavit in support of this application, the mother makes reference to a number of emails she has forwarded to the father’s solicitor, Mr Gray.  There is no evidence before this Court of a response from Mr Gray to the mother’s inquiries.  On 18 October 2010 an affidavit of the father was filed by his solicitors.  At paragraphs 3, 5 and 6 of that affidavit the father deposes:

    3.As I understand the mother’s material the effect of the principal relief sought by the mother is to obtain a passport for [the child].  I have applied for a Canadian Passport for [the child] but have yet to receive a response from Passport Canada as to whether or not they will be issuing the passport.

    5.On 3 August 2010 after being ordered to apply for an Australian Passport for [the child], I was ordered to hand over a passport I do not have.  I stated to the court that I did not have the money to pay for the Canadian Passport application immediately but that I would apply after I was next paid, which I did.

    6.On 27 August 2010 I received a call from the Canadian Consulate in Sydney requesting a copy of the order directing me to apply for a Canadian passport.  As there was no such order I provided them with the order directing me to apply for an Australian passport. - - -”

14. The assertion made by the father that there was “no order in existence requiring him to apply for a renewal of a Canadian passport” is not consistent with the terms of the order made on 3 August 2010.  That order was for the father to deliver the renewed Canadian passport within 21 days to the Independent Children’s Lawyer, and that clearly infers the father is to apply to renew the child’s Canadian passport.  I reject any other interpretation as the father purports to suggest.

15. The father, through his counsel, had given an assurance that there’d be no difficulties with the obtaining and delivering of the appropriate passport.  At the top of page 2 of his affidavit the father says he had a discussion with staff at the Consulate where they advised:

    Australian Courts have no authority to direct Passport Canada to do anything. - - -

16. At no stage has this Court purported to direct a consular official to do anything.  Nor would it do so. This Court has jurisdiction over the father as he is an Australian citizen residing with the child in Australia at the present time.  Orders can be directed to the father to take certain steps to renew a passport of any nation, and this Court clearly has power to do that. 

17. In the second dot point on page 2 of his affidavit, the father says:

    They –

    Canadian Consulate official staff –

confirmed the application will be sent to Canada for a secondary review, once additional information has been obtained and they confirmed [the child] is on the SL list. 

1. The father, on being ordered to obtain the passport, apparently had communicated with the Canadian authorities to have the child registered for a Systems Lookout.  The exact effect of this is not clear in any evidence before this Court.  The father deposes that by early September 2010, he had forwarded the relevant forms received from the Canadian Consulate.

2. The father is adept at computer use.  He could have downloaded the relevant forms as suggested by the mother at any time well prior to receiving them from the Canadian Consulate.  The father says he has made a number of phone calls to the Canadian Consulate but has not received a reply from Passport Canada.  The father says that he has received no correspondence or emails from Canadian authorities, nor has he forwarded same other than forwarding off the passport application, of which he did not keep copies.

3. I accept there is some force in the submission made by the Independent Children’s Lawyer on 20 October 2010 that the father's conduct in this instance is at odds with the manner in which at all previous times during the course of this litigation he has kept a meticulous record.  At paragraph 16 of his affidavit, the father deposes:

   I believe I have been cooperative and timely in my responses and dealings with Passport Canada, I have done all things required and have been honest about my involvement with them.  The costs have been close to $100 now, with additional costs and I have spent considerable time ensuring my application was made correctly and all documents sent quickly.

4. Over the 27 years I have been on the Bench, I have been asked to witness passport documents for friends, neighbours and staff.  I have also been involved in applying for and renewing passports for myself and family members.  I take Judicial notice of the fact that a normal passport application could be completed in less than one hour and forwarded off with passport photos and processed within 14 to 21 days.

5. In responding to the mother's affidavit filed 29 September 2010 at paragraph 17(a), the father states:

   17(a)In relation to paragraph 4 at no time did the court order me to renew [the child’s] passport.  It was ordered that I apply for an Australian passport and then the court ordered me to hand over [the child’s] passport.

6. In paragraph 4 of the mother's affidavit, she said:

   4.On July 20, 2010 Justice Barry ordered that within fourteen (14) days the Father [Mr Carlson] was to renew [the child’s] passport.

7. The mother's interpretation accords with the assurance given to this Court by the father through his counsel.  It is in compliance with the interpretation of the very application that was before this Court, and it is in compliance with the statement that I made as recorded in the transcript that we will settle for the Canadian passport.  The father well knew that the child never had an Australian passport, and to rely on the error in the terms of order 1 of the order of 20 July 2010, is in my view, to take a technical point on what was clearly an error on the face of the document.

8. At the hearing on 20 October 2010, the father did not appear personally.  I noted that this was the first occasion of numerous mentions of this matter when the father had not appeared.  I was critical of the father's solicitor for allowing the affidavit of 18 October 2010 to be filed in terms where it contained numerous matters that were not relevant to the current application, and contained contentions by the father which could only be described as spurious and misleading.  The response of the solicitor on that occasion was that he was acting on instructions.  I will simply say, the ethics of the profession provide for the exercise of a professional discretion in acting on a client's instructions.

Parental Responsibility

1. By way of an order dated 25 August 2009, Howard FM granted the father sole parental responsibility. On 20 October 2010, I made an interim order discharging order 7 of the order of Howard FM of 25 August 2009, and ordered on an interim basis, the parties have joint parental responsibility for the care, welfare, and development of the child.  The reason for doing this was to allow the mother to make her own inquiries of the Canadian Consulate and/or any relevant Canadian department as to the timely processing of the application to renew the child's passport.

   RECORDED  :  NOT TRANSCRIBED

2. Division 13A of the Act deals with consequences of failure to comply with orders and other obligations that affect children.  The first section is section 70NOA, and says:

   This division deals with the powers that a court with jurisdiction under this Act has to make orders to enforce compliance with orders under this Act affecting children

The Mother’s Contravention Application

1. I am more than satisfied that orders for the renewal of a passport to facilitate compliance with the earlier orders that the child spend time in Canada is an order affecting children.  Paragraph 70NAA(3) deals with the orders that a court can make on a contravention application.  This Court can:

   ·    dismiss the application;

   ·    find that the contravention has occurred but that there is a reasonable excuse; or

   ·    find that there has been a contravention and no reasonable excuse for the contravention.

2. The Court has to make a finding whether it's a less serious contravention or a more serious contravention.  In my experience, that is normally something that is pleaded so that the respondent to these allegations has to be on the alert that this Court is being asked to treat the contravention as a serious contravention.

3. I turn to the two contraventions that are pleaded in the document of 20 October.  The first is - the respondent, without reasonable excuse, did not renew the child’s passport within 14 days.  The order that is annexed to the document is the order of 20 July 2010. 

4. The technical point is taken, that the father was not so ordered on that occasion, as the order was to renew an Australian passport.  Clearly that was an error.  In contraventions, a prima facie case has to be made out by the applicant.

5. Once a prima facie case is made out that there was an obligation on a party to do something, and it is established that that has not been done, the question of reasonable excuse arises, and the onus of establishing a reasonable excuse lies on the respondent - the father in this instance.  However, there are complications attaching to reliance on the order of 20 July 2010 because of the error on the face of the document.  But, in any event, as I understood the proceedings on 20 July 2010, through his counsel, the father indicated that he was impecunious and there would be some delay before he could raise the money to send with the passport application.

   RECORDED  :  NOT TRANSCRIBED

6. The part of the legislation that deals with children is Part 7, and section 60B says:

   The objects of this part are to ensure that the best interests of children are met by ensuring the children have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child.

   Section 60B(2) says:

   The principles underlying these objects are that, except when it is or would be contrary to a child's best interests, children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together, and children have a right to spend time on a regular basis with and communicate on a regular basis with both their parents and other people significant to their care, welfare and development, such as grandparents and other relatives.

7. At section 61B, under the heading Meaning of Parental Responsibility, the section provides in this part:

   Parental responsibility in relation to a child means all the duties, powers, responsibilities and authority which by law, parents have in relation to children.

   And section 61C provides:

   Each parent has parental responsibility subject to court orders and the responsibility is not affected by changes in the parents’ relationship.

1. The father has had sole responsibility since the order of Howard FM up until last week when, for the reasons that I gave, namely, the mother was being precluded from making inquiries from the Canadian Consulate, I made an order for interim joint responsibility.  The mother seeks an order for sole responsibility.  It seems to me that that issue can be considered in the light of the passport issue, but also any other complications that may arise once the passport has issued and been delivered.

   RECORDED  :  NOT TRANSCRIBED

   ORDERS DELIVERED

2. It clarifies and summarises the position.  Clearly this Court has made orders that the child travel to Canada to see the mother.  Critical to that is the issuing or renewal of a passport.  I certainly did not anticipate there would be any complications in that process.

   RECORDED  :  NOT TRANSCRIBED

3. Again, I do not want to be seen for one moment to be pre-judging this, but I can simply say that, on my understanding of the law, if a parent has the right, for example, to see a child every Saturday from 9.00 until 5.00 pm, and the parent does not turn up, they have not contravened the order.  You cannot force somebody to see their children if they do not want to.  Similarly where there is an order for phone calls.  A parent who does not make the phone calls, does not contravene an order.  If the caring parent, the resident parent, fails to make the child available, he or she has contravened the order.  It is a one way street.

4. But as I understand it, and I have had submissions on this issue many times, and there is no obligation on a party if there is provision in orders, for example Skype or telephone communication.  The mother in not doing that - it can tell against her later as a relevant factor to be taken into account, but it does not amount to a contravention.  Again, I am willing to hear any submissions at a full hearing on this issue.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry.

Associate: 

Date:  27 October 2010