Carlson and Fluvium (No. 3)

[2011] FamCA 558

FAMILY COURT OF AUSTRALIA

CARLSON & FLUVIUM (NO. 3) [2011] FamCA 558

FAMILY LAW – CHILDREN – Where interim orders exist for handover of the child – Where the Full Court has upheld those interim orders of the first instance judge – Where the father sought to have such orders suspended until trial – Father must comply with handover order – Mother must provide the father with details of the child’s travel arrangements – Mother must provide the Independent Children’s Lawyer with details of the child’s accommodation during travel – Mother is to organise the child’s return travel in compliance with the first instance orders.

APPLICANT:

Mr Carlson

RESPONDENT: Ms Fluvium

INDEPENDENT CHILDREN’S LAWYER: Ms Leisa Toomey

FILE NUMBER: BRC 9490 of 2008

DATE DELIVERED: 7 July 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 7 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: The Applicant Father appearing in person

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 father is to present the child D born … June 2006, to the Child Dispute Service, Family Court of Australia at Brisbane at 4.00pm today in order for the child to be handed to the maternal grandmother and the father is to come with the paternal grandfather and/or the paternal grandmother.

2. IT IS REQUESTED that Qantas extend the time for payment of the child’s airfare to Canada until 5.00pm today.

3. The mother is to book a flight for the child to return to Australia in one month from today’s date.

4. The mother is to forthwith provide the father with the child’s travel details including dates of travel and flight numbers.

5. The mother is to provide the Independent Children’s Lawyer with the address of any residence at which the child will be residing for a period of more than 48 hours other than the mother’s present residence and a telephone number at which she can be contacted in the case of emergency.

6. The expired passport of the mother held by the Independent Children’s Lawyer is to be returned to the mother for the purpose of the mother obtaining a passport for travel to Australia for the trial, such expired passport to be returned no earlier than 10 days before the mother is due to travel.

7. The Order of 30 November 2010 be stayed pending trial of the matter.

8. The Application for Final Orders filed on 25 August 2009 be adjourned to 10.00am on 3 October 2011 for trial for three days.

9. Otherwise all applications are adjourned to 10.00am on 3 October 2011.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Carlson & Fluvium (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9490 of 2008

Mr Carlson

Applicant

And

Ms Fluvium

Respondent

REASONS FOR JUDGMENT

1. This is an application on the part of the applicant Mr Carlson (“the father”) for certain orders which are set out in his application filed 6 July.

RECORDED  :  NOT TRANSCRIBED

1. I have had in-depth discussions with the father about the difficulties which are clearly apparent in his case.  Unfortunately, the father was of the view that as a result of his application the order made by Principal Registrar Filippello for the child to be presented here at 10.30 am has not been complied with.  As a result thereof I have determined that, in fact, the child will be presented to this court no later than 4.15 pm, and that the child will be accompanied to the court by either Mr Carlson’s father or mother or both if they wish.

RECORDED  :  NOT TRANSCRIBED

1. Until that stage I will reserve my judgment. 

RECORDED:          NOT TRANSCRIBED

1. This is an application filed by the father on 6 July 2011 to which he sought various orders.  The application arises out of a decision by Barry J – an interim decision, may I make it quite clear – in relation to a child of the relationship between the father and the respondent, Ms Fluvium (“the mother’), who was a resident of Canada – is Canadian by birth.  I need not go into an in-depth discussion as to the facts relating to the matter, other than to refer to and incorporate in these my reasons.

2. The reasons of the Full Court, who were seized of this matter on 29 April 2011 and judgment was given by the Full Court late in March 2011.  The Full Court sets out in full the facts relating to this matter.  I emphasise this was an interim matter.  Secondly, they have considered the notice of appeal and the various grounds raised by the father, who was the appellant.  He opposed the removal of the child, D, who is now about five years of age to Canada with his mother, which could vary between one to three months.

RECORDED:          NOT TRANSCRIBED

1. The difficulty with the father’s application primarily – there are other matters which we have to discuss.  I have explained it to him – that there was an order made, a judgment delivered by Barry J, and then in fact it was appealed.  The Appeal Court has considered it in full.  I know the father has read the reasons for judgment - he may not agree with them but nevertheless they are there, and I cannot in any way interfere with those matters which the Court of Appeal was seized of.

2. It would be almost impossible for me, of course, without the Court of Appeal to interfere with Barry J’s judgment unless, of course, there were substantial changes in circumstances since then.  The father has said that there have been - he particularly emphasises the report of a psychologist that he has retained and, as he says, he is the only expert really who has discussed the matter with D at all and he says that, “Yes, you have it there,” and he wishes that to be put before me in relation to this application.  I would not accept it in relation to this application, as I hope I have made it clear to the father, I am bound - my hands are totally tied and consequently the boy will go.

3. The question that arises are the other matters that the father has raised and they are in relation to orders made by Barry J on 30 November 2010, which I understand were not in any way subject to an appeal to be determined by the Full Court which determined the original.  It is still in existence, by memory. 

RECORDED:          NOT TRANSCRIBED

1. He points out to me that these – and the mother who appears by phone from Canada – requests that such orders be implemented.  As far as I am concerned – taking into consideration the fact that the boy will be leaving Australia on Saturday, as I understand, with his grandmother – that it is unnecessary for anybody to consider enforcement of that order and I will stay that order pending the trial, which we will set down now for 3, 4 and 5 October 2011.  The directions orders will be made by the registrar on 29 July 2011and I commend that sittings to the parties, it is absolutely essential that this matter be ready to go on the 3, 4 and 5 October 2011.

2. I have not – as I have said – entered into any in-depth discussion in relation to this matter.  I hope I have explained it to the father and he being an intelligent man, has understood the difficulty under which he is and I am, in particular.  He has justified his concern for the boy by referring to this report that I have refused to read into the application today.  It can be used in the trial which is coming on in October 2011 but I regret that I am bound and I cannot in any way help him in relation to the judgment wherein the child is going overseas.

3. Insofar as the matter of the testimony of Ms T is concerned, that is a matter once again for the trial – for the substantive hearing it is not an interim matter.  I am not the Judge who will be hearing the trial and consequently

   
   

   the father is entitled to raise such matter before the Judge and he will determine whether Ms T’s evidence is admissible or not.

4. Insofar as dismissing the Independent Children’s Lawyer, Leisa Toomey, from the trial, I think that that was also touched upon by the Court of Appeal and I refer to their decision therein.

5. Insofar, once again, of the amount of $10,000 which was ordered to be paid as by way of a bond to ensure that, should anything go wrong, the father – Mr Carlson – has adequate funds to journey to Canada in an attempt to recover his boy and I would think that in all probability he would, because the Canadian Courts have already applied the Hague Convention on one occasion in relation to –

RECORDED:          NOT TRANSCRIBED

- on one occasion.  I understand there is another application under the Hague Convention in existence for another child of the relationship of the two – of the applicant and the respondent. 

1. The father has quite justifiably complained about the fact that he had little or no information as to when the child was going, where the child was going to, how he could contact the child.  I believe that that has been covered to a great extent.  And he has also sought orders in relation to Principal Registrar’s Filippello’s decision of 30 June 2011.  We have discussed that in length and as he realises, I hope now, that should – and I have ordered that the child go – well, not ordered the child go - the child is going.  I am not stopping the child going in accordance with Barry J’s order – that they are really to his benefit, save for orders 10 or 11.

2. 10 and 11 were ones that, should he not bring the child to a Court at a time to be determined by the Independent Children’s Lawyer – it was either 10.00 am or 10.30 am today – that a recovery order should issue by myself.  I am very much against recovery orders for children.  I think it is terrifying for them.  It is bad enough being in court and around courts, but fortunately, the father has seen fit to comply with that order, albeit a little late and consequently I am not in any way enforcing that order.

3. It is a tragic case, it really is.  The only person I feel as though is going to be greatly hurt by this is the boy.  I have said on many times that it is about time the parties grew up, become sensible, responsible adults and put their children first – in this case, their child first.  I am not going to say that it is one person or the other person’s fault that they are before this Court, but clearly on the material that I have seen, the parties are very, very antipathetic to each other, to use the minor word that I possibly could.  I might even go so far as it appears on the face of things they hate each other.

4. The boy is the one who is being affected.  If these parties could get together – if they could, and I suspect it is a hopeless suggestion on my part – that they could share him.  I do not mean week and week about or anything of that nature, but lengthy periods – either in Canada or lengthy periods out here.  Unfortunately, that is a matter for the new Judge who will be hearing this case and fortunately they have a very good Judge and I hope they will be very pleased with his expertise and his ability - I would be.

5. I cannot take it any further, save that I want to emphasise that the father is entitled to know where the boy will be, is entitled to know what flight the boy is going on and is entitled to know what time the boy is returning.  Now, the father has put before me that the order made by Barry J in relation to a psychologist interviewing the child some two weeks after the child is there is rather open-ended.  What he has indicated and submitted to me is that I should consider making an order that the return airfare for the child be one month, which is the first period referred to by Barry J and that, as he says from the bar table – there is no evidence to support this – but he says from the bar table that it is easier to extend the time rather to abridge the time.  I think there is much in what he says.

6. I understand that there has been some evidence put before the court now in relation to the purchase of a ticket.

RECORDED:          NOT TRANSCRIBED

1. Now, also, I insist that the mother to whom the child will be going supplies to the Independent Children’s Lawyer an address at which the child is rightly residing and a telephone number at which she can be contacted in the case of emergencies. 

RECORDED:          NOT TRANSCRIBED

1. Well, I think that the father is entitled to the address at which the child will be residing for any time in excess of 48 hours, other than the mother’s present residence.

RECORDED:          NOT TRANSCRIBED

1. I note that the boy is entitled to contact his father – it is by way of Skype, is it not, twice a week.  I will not make any orders as to that - they are in existence.

2. I regret that it has come to this pass.  I regret that I was put in the invidious position of having to decide this and I think it is very sad that there is a great deal of urgency involved in it, but I can only hope that this will be enlightening and that the parties will be able to come somewhat closer, if only for the child.

3. I therefore –

RECORDED:          NOT TRANSCRIBED

1. Everybody agrees that the bond was – and it has in fact been paid.  May I make it quite clear that it may appear that I have in fact looked upon the orders of Principal Registrar Filippello as being an appeal - I have not. 

ORDERS DELIVERED

RECORDED:          NOT TRANSCRIBED

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 7 July 2011.

Associate: 

Date:  7 July 2011