Carlson and Fluvium (No 4)

FAMILY COURT OF AUSTRALIA

CARLSON & FLUVIUM (NO. 4)

[2010] FamCA 1234

FAMILY LAW – CHILDREN – Contravention orders – Mutual contravention applications – Some of Father’s contravention applications involve Child where Court has declined to exercise jurisdiction over such Child – Applications summarily dismissed for want of jurisdiction – No contravention where a party fails to exercise a right given by an Order – Father found to have contravened an order – Question of appropriate penalty – Term of imprisonment suspended subject to Father complying with future orders and directions

APPLICANT:

Mr Carlson

RESPONDENT:	Ms Fluvium
INDEPENDENT CHILDREN’S LAWYER	Leisa Toomey, Solicitor

FILE NUMBER:

BRC

9490

2008

DATE DELIVERED:

30 November 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Barry J

HEARING DATE:

30 November 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

The Applicant Father appearing in person

SOLICITOR FOR THE RESPONDENT:

The Respondent appearing by telephone (not legally represented)

SOLICITOR FOR INDEPENDENT

CHILDREN’S LAWYER:

Mr Shaw, Solicitor appearing as town agent for the Independent Children’s Lawyer

Orders

IT IS ORDERED THAT:

Mother’s Amended Application for Contravention Filed 5 November 2010

(a) This Honourable Court finds a prima facie case has not been established in relation to counts 1 and 2 and they are accordingly dismissed;
(b)this Honourable Court finds in relation to count 3 that the Father, Mr Carlson, without reasonable excuse contravened the Order as alleged.
The Father is sentenced to a term of imprisonment for fourteen (14) days, wholly suspended for a period of twelve (12) months or until the child, D born … June 2006 travels to Canada in accordance with the terms of the Order of this Honourable Court dated 28 May 2010, whichever is the earlier. The suspension of the sentence and imprisonment is conditional on the Father complying with all Orders of this Honourable Court and all directions given to him by the Independent Children’s Lawyer to enable the child, D born … June 2006, to travel to Canada in accordance with the Order of this Honourable Court dated 28 May 2010.

Father’s Application for Contravention filed 22 June 2009

This Honourable Court finds a prima facie case has not been established in relation to any of the contraventions particularised in the Father’s Application for Contravention filed 22 June 2009 and such application is dismissed.

Father’s Application for Contravention filed 2 December 2009

This Honourable Court finds a prima facie case has not been established in relation to any of the contraventions particularised in the Father’s Contravention Application filed 2 December 2009 and such application is dismissed.

IT IS ORDERED UNTIL FURTHER ORDER THAT:

When the Independent Children’s Lawyer receives the passport from the Canadian Consulate for the child, D born … June 2006, the Independent Children’s Lawyer or her agent is to release the passport to the maternal grandmother or such other person as may be authorised by the Mother to allow the child to travel to Canada in accordance with previous Orders of this Honourable Court.
Paragraph 5(b) of the Order of this Honourable Court dated 28 May 2010 is discharged and substituted with the following:
“5(b)(i)prior to the child, [D] born […] June 2006, departing Australia to travel to Canada in accordance with the Order of this Honourable Court dated 28 May 2010, the Mother is to arrange for a guarantor to pay the sum of A$10,000 to the Collector of Public Monies, Family Court of Australia, Brisbane Registry, by way of cash, money order, EFTPOS, credit card or bank cheque;
5(b)(ii)the money is to be held as special public monies in an interest bearing account;
5(b)(iii)upon being advised in writing by the Independent Children’s Lawyer, Leisa Toomey, that the child [D] has been returned to Australia after spending time with the Mother in accordance with the Order of this Honourable Court dated 8 May 2010, a Registrar of this Honourable Court is to authorise the return of the monies to the guarantor.”
The guarantor is to forward to the Registrar of this Court an acknowledgment in writing that in the event the Mother does not return the child to Australia in accordance with the terms of the Order of this Honourable Court dated 28 May 2010, the monies paid into Court by the guarantor may be released by Court Order to the Father of the child, Mr Carlson.
The Mother is to ensure that the Canadian passport for the child be delivered to the Independent Children’s Lawyer by registered post after the child has been returned to Australia.
The Independent Children’s Lawyer is to continue to hold the child’s passport subject to further Order of this Honourable Court.
Paragraph (1) of the Order of this Honourable Court dated 28 May 2010 be discharged and substituted with the following:
“Paragraph (4) of the Order of this Honourable Court dated 25 August 2009 is discharged.”
Paragraph (9) of the Order of this Honourable Court dated 28 May 2010 be discharged and substituted with the following:
“The Independent Children’s Lawyer or her agent deliver the child’s passport to the maternal grandmother pursuant to any direction received from the Mother or the maternal grandmother.”

IT IS FURTHER ORDERED THAT:

Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

MOTHER’S AMENDED APPLICATION FOR CONTRAVENTION FILED 5 NOVEMBER 2010

I find that the father contravened the order as particularised in count 3 of the application. The order was made with a view to establishing the possibility of the mother being able to apply for a passport, as in the event she was proposing to do, and to do so, she would need passport photos of the child. It was not known what was causing the delay with the renewal of the passport by the Canadian Consulate. The order of the court of 20 October 2010 was perfectly simple in its terms:
The father is to supply by 4.00 pm on 21 October 2010 by delivering same to the office of the Independent Children’s Lawyer, four passport photos of the child.
Nothing could be simpler. The father did not seek to appeal that order. He has not applied to vary the order or stay the order. He has blatantly, I say blatantly, been in non-compliance with what was a simple requirement under an order.
I find it does not constitute a reasonable excuse to say, “It was going to cost me $15.” I find it does not constitute a reasonable excuse to say, “I had already sent the Canadian authorities the photos. You didn’t need any more photos.”
There was an order to supply photos. He failed to do so. That is a given. I do not accept the reasons advanced constitute a reasonable excuse, and I propose to find the father has contravened the order. I will hear submissions on the issue of penalty to be imposed subsequent to hearing the father’s contraventions. Now, I turn to consider the father’s contraventions. The first is the contravention of the 22 June 2009.

RECORDED : NOT TRANSCRIBED

FATHER’S APPLICATION FOR CONTRAVENTION FILED 22 JUNE 2009

The order which was originally made was paragraph 4 of the order of 25 March 2009. The order is paragraph 4:
That the father facilitate communication between the mother and the child [D] via webcam.
There is no obligation by that order on the mother to do anything. “Facilitate” in the dictionary definition means “to assist”.

RECORDED : NOT TRANSCRIBED
I informed the father on a previous occasion that I can find no reported case where an individual who does not exercise a right given by law contravenes an order. Where, however, an individual wishes to exercise such a right and is prevented from doing so, then there is a breach of the order. This interpretation is supported by the legislation:
Section 70NAC Meaning of contravened an order

A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a) where the person is bound by the order - he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order; or

(b) otherwise - he or she:
(i) intentionally prevented compliance with the order by a person who is bound by it; or
(ii) aided or abetted a contravention of the order by a person who is bound by it.

Section 70NAD:

(c) A parenting order that deals with whom a child is to communicate with is taken to include a requirement that people act in accordance with section 65NA in relation to the order.
Section 65NA is in the following terms:
General obligations created by parenting order that deals with whom a child communicates with
(1) This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to communicate with.
(2) A person must not:
(a) hinder or prevent a person and a child from communicating with each other in accordance with the order; or
(b) interfere with the communication that a person and a child are supposed to have with each other under the order.

The clear interpretation of that is there is no obligation on a person to make phone calls to communicate via webcam.
RECORDED: NOT TRANSCRIBED

The ruling I make is that whether it’s the order of 22 October 2008 or whether it’s the order of 25 March requiring the father to facilitate communication or whether it’s the subsequent order of 25 August 2009 which was the composite order by Howard FM, there has been no prima facie breach by the mother in failing to make calls that she could have made. I have already ruled in relation to the child K. I have heard the submissions in relation to the media issues, and that seems to be the case in relation to all of the matters of the contraventions of 22 June 2009. So to formalise this I will give reasons and those reasons are as follows:
The father asserts contraventions by the mother in that she has breached the orders made by Howard FM in the Federal Magistrates Court, and the first order is an order of 22 October 2008. The second order is an order of 13 March 2009. The third order is an order of 25 March 2009.
Those orders are in the following terms: the first order said to have been breached is the order dated 22 October 2008. The father asserts the mother has breached paragraphs 6, 9, 10, and 11. Paragraph 6 is:
That the child communicate and spend time with the mother as agreed between the father and the mother.
Paragraph 9:
That the mother provide within 30 days a complete list of the names and contact information of all medical contacts who have provided medical services, health care, immunisation. (Canadian medical service providers for the child while he lived in Canada).
Paragraph 10:
That the mother contact all Canadian medical service providers listed by the mother to advise them that the father will be contacting them directly for all records and information about the child and provide them with written authorisation for them to disclose all information in their records. The mother will provide to the father forthwith copies of all such authorisations within 30 days.
There is nothing in paragraph 10 to say it has to be signed copies. She has provided copies of the documentation she says she forwarded, and she informed the father who were the treating medical practitioners by 30 November, I believe, and in any event, forwarded the necessary copies.
From the father’s material it appears she has done all that was required of her by this order.
Paragraph 11:
That the mother will provide to the father all medical insurance cards including but not limited to the Ontario Health Insurance Plan card provided for the child.
The mother says she did not have the Medicare card from Australia or the Ontario Health Insurance Plan card.
The next order the mother is said to have breached is the order of 13 March 2009. Paragraph 4 was an injunction preventing either party from discussing this case or any associated parenting issue with any member of the press or any member of the media.
The third order said to be breached is the order of 25 March 2009, paragraphs 5 and 6. Paragraph 5, as I have already noted:
That the father facilitate communication between the mother and the child [D] via webcam.
There is no obligation on the mother to do anything.
Paragraph 6 relates to K, and as I have ruled, this Court does not have jurisdiction over that child.
The evidence presented by the father to support the contraventions is to be found in an affidavit filed on 22 June 2009. Annexure A to that affidavit, the father says is the agreement between the parties in relation to the arrangements for communication by webcam for both D and K. Annexure B is the missed contact dates and the schedule contact that she has not made him available for.
Before considering this evidence, I propose to amplify the ruling that I have made in relation to the child K. The orders made by Howard FM of 25 March 2009, whilst by paragraph 5 he made interim orders for facilitating communication with the child K, there is a notation to the order, notation A:
The mother has informed the Court that she did not provide instructions to Barry & Nilsson Lawyers to submit to the jurisdiction of the Court concerning the child [K], born […] July 2008. Such issue is to be determined by the Court at a later date.
Howard FM does not explain how an order could be made about the child K when the Court has not assumed jurisdiction and the issue of the jurisdiction is challenged.
On 25 August 2009, Howard FM transferred the matter to this Court. By notation to that order, it was noted:
It is requested that the Family Court of Australia consider listing this matter for an interim hearing on the jurisdictional issue regarding the child [K], born […] July 2008.
The jurisdictional issue was argued before me on 7 December 2009. Ms Hogan of Counsel appeared for the Independent Children’s Lawyer. Her submissions were that whilst the Court technically had jurisdiction, there was an overwhelming balance for a Judge in the exercise of his or her discretion not to exercise such jurisdiction. It was submitted that the child was born in Canada, has never been in Australia, is a Canadian citizen. The mother is a Canadian citizen. The only basis for the Australian Court to exercise jurisdiction was that about 12 months before the child was born, the father had become an Australian citizen.
On 3 February 2010, for the reasons given at the time, I ordered the Court declines to exercise jurisdiction over the child K. It follows that I would not allow any contravention for breach of any order involving K, as the Court that made the orders was not authorised so to do. The fact that the father was residing in this country was not deemed a sufficient connection for the Court to exercise jurisdiction over the child in question.
For the reasons given, I do not propose to allow any contraventions to be prosecuted in relation to any breaches involving the child K. In relation to the contraventions in the three orders, I have noted in passing that the three orders were all discharged by the Federal Magistrate by his order of 25 August 2009.
I accept that by the time the contraventions were lodged on 22 June 2009, the various orders were the operative orders. It is arguable, I would have thought, that the operative orders as at today’s date have all been discharged by the subsequent order and an amendment should have been sought to the contravention application, but that wasn’t done. However, I proceed on the basis that the three orders are the operative ones and the mother is said to have contravened them.
Order 9, as I have noted, was the order that the mother provide within 30 days a complete list of the names and contact information of all medical services, health care, immunisation, etcetera, for the child while he lived in Canada. The father deposes at paragraph 5 of his affidavit:
I was not provided with all this information within 30 days, and I had to collect most of it myself. It took prompting with two letters to [the mother] to get her to provide the list of contacts. This was a major issue at the time, because it made getting all [D’s] medical history together very difficult and time consuming. It took me several months to get his complete medical history together. I felt that having done that quickly would be a priority to her, as it was for me, and as it directly concerns [D’s] best interests, health, and safety.
The affidavit of the father annexes as annexure D, page 5 of 8 clearly is an email from the mother on 3 November 2008 sending three attachments and giving the details of the medical practitioners. Subsequently, she supplied the details of the midwife. Why the midwife would ever need to be contacted escapes me. Whether it would come within the terms of the Federal Magistrate’s order is questionable but the issue does not arise. I am prepared to find on a prima facie basis the mother did not breach the order at all. By 3 November, she had sent the necessary authorisations.
On 21 November, a further email was sent by the respondent:
[Mr Carlson], attached is a letter I have provided the midwife in order to release info to you.
And so on. She concludes:
As per paragraph 10 of the Australian order, you now have copies of all letters of authorisation. All parties are aware that you will be contacting them directly. You will not need signed copies in order for them to release info to you. They themselves have signed copies.
The applicant seems to assert by his letter of 12 November that the mother has not complied with paragraph 9 and 10 of the orders of 25 October 2008. The emails he annexes would seem to be clear compliance with the requirements of paragraph 9, to provide a complete list of the names and contact information of medical contacts. Paragraph 10 seems to have been complied with by the forwarding of the attachments authorising the getting of the information.
I am not prepared to interpret the order to mean that the father had to receive a certified original. She sent him unsigned copies of the authorisations she had forwarded to the medical practitioners. It seems to be beyond argument that the various medical practitioners received the signed authorisations to disclose the information, as there is no challenge to that aspect.
In relation to order 11, she has already replied and says she did not have the various health cards. It seems to me the father has not proved that she could have supplied them. There is no obligation under the orders for the mother to go out and renew cards that she no longer has. There is no evidence before the Court that the father could not himself obtain Canadian health cards. In any event, the child is in Australia and I would have thought would be covered by Medicare, as apparently he is at present.
The prohibition on speaking to the media: I have serious reservations that the Federal Magistrates Court in making any order could extend its jurisdiction to a prohibition on speaking to the media in a foreign country. However I proceed on the basis that the mother was bound personally by the order.

The father asserts, by inference, that the mother was responsible for the publications in the press. Annexure E appears to be an advertisement placed in a Canadian publication. There is no evidence to establish that the mother has placed that advertisement other than the fact that tickets or info could be obtained from someone with the same first name as the mother at a designated phone number or Z at another number. It may well have been Z who placed the ad for the fundraiser in the free press document. I am not prepared to conclude that the mother has breached the restraint in the newspaper article. The penultimate paragraph of that articles says:
[the mother] said she left Australia in November 2007 with her two children, one of whom was fathered by an Australian national, to escape an abusive relationship.
It is clear from the context of the article the interviews were being given by the maternal grandmother. In the second paragraph of the article, the bottom line is:
“[the mother] is going to be able to do as much as she can do based on how much money she raises,” said [the mother’s] mother.
The maternal grandmother noted in the penultimate paragraph of the article that her daughter is prohibited from communicating with media by Australian court order. She said she would be speaking at the event, and there were various other notations.
I am not prepared to conclude that there is any evidence that the mother has spoken to the media. The conclusion I have reached for the reasons given is that the father has not made out a prima facie case in relation to the alleged contraventions of the order, orders of 25 October 2008, 13 March 2009, and 25 March 2009. The consequence of this is that the mother will not be required to be called upon. We will now turn to the contraventions of 2 December 2009.

RECORDED : NOT TRANSCRIBED

The difficulty you have there is that paragraph 5 is not going to apply because it relates to K, and the Court does not have jurisdiction over that child, therefore it couldn’t make a valid order, therefore the mother could not possibly contravene. The relevant provision of the reissued order of 25 August 2009 appears to be paragraph 2:
That the father facilitate communication between the mother and the child [D] via webcam - - -
As I have said, the exact wording of the order of 25 August 2009 is that the father facilitate communication. “Facilitate” means to promote or to assist. I have previously referred to section 70NAC, section 70NAD, and section 65NA. The obligation under the order is on the father. There is no obligation on the mother to facilitate communication with D. The fact the parties have agreed to the nature of the communication and the time for communication is not relevant when considering whether the mother has contravened any order.
All that the order requires is for the father to facilitate, that is, to assist to promote the communication. To his great credit, he seems to have done this. His complaint is that the mother has not availed herself of every opportunity to communicate with her son. I am prepared to rule that there is no contravention by the mother if she does not avail herself of the right to communicate. Even if the order had been far more direct, in terms such as, “The mother shall communicate with the child by telephone at 6 o’clock each Friday,” the failure to exercise a legal right granted by court order does not amount to a contravention of the order if the communication is not made.
Section 65NA is clear in the way the Federal Parliament structured it, that in terms of communication, an individual is not to prevent the communication. I endeavoured to explain this to the father on the last occasion the matter was before me. I can find no recorded case in the last 30 years where an individual has been held to contravene an order simply by not exercising a right. By way of example, if somebody has the right to see the child on alternate weekends and does not exercise that right, there can be no breach of the order. If, on the other hand, the primary parent refuses to allow the other parent to exercise the right, that does constitute a denial of a right given by a court order and can constitute a contravention. Put another way, a court cannot force a parent to communicate with the child but can insist that a parent who wishes to engage with the child should not be frustrated in doing so by the primary parent. So for the above reasons, I propose to dismiss the contraventions and find no prima facie case established in relation to contraventions of 2 December 2009.

RECORDED : NOT TRANSCRIBED

VARIATION TO ORDERS OF 28 MAY 2010

What I propose to do is I am satisfied the money is being borrowed by the mother. They are not her funds. I propose to discharge the order of 28 May 2010. I will start at the beginning. Paragraph 1 is incorrect. It provided that paragraphs 1, 2, and 3 of the orders made at the Federal Magistrates Court on 22 October 2008 are discharged. That order is to be amended so that it reads that paragraph 4 of the order made on 25 August 2009 is discharged. It is discharged, in any event, by necessary implication by the fact that paragraph 3 of my orders says the Federal Police are to remove the name of D from the Airport Watch List.

RECORDED: NOT TRANSCRIBED

I will delete the words “with his passport” in paragraph 9. I will substitute an order that the Independent Children’s Lawyer or her agent deliver the passport to the maternal grandmother. There was a previous order, paragraph 5(b) of the order of 28 May 2010. It was an order that the mother was to lodge a bond in the sum of A$10,000 with the Independent Children’s Lawyer’s trust account, and then there were various consequential provisions, including paragraph (c). What I propose to do is discharge that order, and I will substitute the following order:
Prior to the child [D] departing Australia to travel to Canada, in accordance with the orders of this Court dated 28 May 2010, the mother is to arrange for a guarantor to pay the sum of A$10,000 to the Collector of Public Moneys, Family Court of Australia, Brisbane Registry. Which sum is to be held by the Collector of Public Moneys subject to the following conditions:
(1) The money is to be held in an account in the name of the guarantor.
(2) The money is to be invested at the best interest rate available for such moneys paid into Court pursuant to an order.
(3) Upon being advised that the child [D] has been returned to Australia after spending time with his mother in accordance with the terms of the order of this Court 28 May 2010, the money together with interest is to be returned to the guarantor.
The further order is the guarantor is to forward to the Registrar of this Court in writing an acknowledgement that in the event the mother does not return the child to Australia in accordance with the terms of 28 May 2010, the moneys paid into Court by the guarantor may be released by court order to the father of the child, Mr Carlson.
There will be a further order the mother is to ensure the Canadian passport for the child D is to be delivered to the Independent Children’s Lawyer by registered post after the child has been returned to Australia. Now, that can easily be done by the maternal grandmother or somebody on the mother’s behalf.
The Independent Children’s Lawyer is to continue to hold the child’s passport subject to further order of the Court.

RECORDED : NOT TRANSCRIBED

ISSUE OF PENALTY FOR BREACH BY FATHER OF COUNT 3 OF MOTHER’S CONTRAVENTION APPLICATION FILED 5 NOVEMBER 2010

The powers of the Court in relation to issue of the penalty where the Court has found a serious contravention include the imposition of a fine; the requirement to enter into a bond with or without a surety pursuant to the terms of section 70NFE; a community service order pursuant to section 70NFC. Queensland has made reciprocal arrangements with the Commonwealth, so as I understand it, the state probation service administers community service orders. Under subsection (2) of that section, I am not allowed to order a period of time greater than the maximum that a Judge exercising state jurisdiction could order. My understanding of that, that is not likely to occur. The kind of community service orders include a community service order, a work order, an attendance centre order, an attendance order, or a community-based order. I have imposed these community service orders in the past.
They are very top heavy from a bureaucratic perspective and that before doing so, I have to involve the Queensland Probation Service. A probation officer has to confirm to the Court that they are able to supervise the community service order, where the community service order is to take place, the nature of the work that will be involved, things of that nature. It will involve several hearings. I find that imposition of a fine where the father has no assets and his only income is Centrelink benefits is not an option available to the Court. Having regard to the nature of the breach and the contravention, I find a bond again is not a sufficient deterrent and one which would be difficult to implement.
I note the terms of section 70NFG, that:
A sentence of imprisonment imposed on a person under section 70NFB(2)(e) is to be expressed to be for a specified period of 12 months or less and for a period ending when the person complies with the order concerned.
A court must not sentence a person to imprisonment under section 70NFB(2)(e) unless the court is satisfied that, in all the circumstances of the case, it would not be appropriate for the court to deal with the contravention under any of the other paragraphs of subsection 70NFB(2).
And I have, in effect, summarised the various options available to the Court.
What I propose to do, Mr Carlson – stand up, please – is I propose to sentence you to a term of imprisonment of 14 days. I will suspend that period of imprisonment – it is to be wholly suspended on condition you comply with all orders of the Court and all directions given to you by the Independent Children’s Lawyer to enable the child D to travel to Canada in accordance with previous orders of this Court. That is the order of this Court. You will comply. If you do not comply, you can be dealt with for contravening any future orders, but if you fail to comply with directions of the Independent Children’s Lawyer or orders of this Court, you may be bought back to Court, and the Court order the period of suspension be lifted.

RECORDED : NOT TRANSCRIBED

It is to be hoped that the orders that I make will be implemented. I am determined that that be so.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry delivered on 30 November 2010.

Associate:

Date: 30 November 2011

[2010] FamCA 1234

30 November 2010

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