Carpenter and Carpenter

[2008] FamCA 1141

FAMILY COURT OF AUSTRALIA

CARPENTER & CARPENTER [2008] FamCA 1141

FAMILY LAW – CHILDREN – Parenting

Family Law Act 1975 (Cth)

APPLICANT: Mr Carpenter

RESPONDENT: Ms Carpenter

FILE NUMBER: MLC 9423 of 2008

DATE DELIVERED: 15 October 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 15 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Milford

SOLICITOR FOR THE APPLICANT: Aughtersons

Orders

1. That the husband have leave to make the application without notice to the wife.

2. That the husband is exempt from the provisions of s 60I of the Family Law Act 1975 (Cth) because of the matters set out in s 60I(9).

3. That until further order, the children R born … July 2003 and T born … July 2005 live with the wife.

4. That until further order, the wife have sole use and occupation of the home at U.

5. That until further order, the husband make all mortgage payments in respect of the said home as and when they fall due.

6. That upon the wife arriving in Australia and until further order, the husband pay to the wife the sum equivalent to $1500 rand per week by way of spousal maintenance with the first payment being made immediately upon her arrival.

7. That until further order, the husband pay any medical and dental expenses reasonably incurred by the wife in respect of herself or the said children.

8. That until further order, the husband spend time with the children on such times as may be agreed between the parties subject to the supervision of the Delegate of the Central Authority of Australia.

9. That the husband do all acts and things required of him by the South African State Central Authority to enable the purchase of economy class air tickets from South Africa to Australia for the wife and the children and if necessary, the cost of motor vehicle transportation by road by the most direct route from L in the North West Province to O.R. Tambo International Airport at Gauteng, South Africa.

10. That the orders this day be expedited.

11. That the husband arrange for service of these orders upon the wife and the office of the Family Advocate at Mafikeng by facsimile transmission as soon as practicable.

12. That my reasons for judgment be transcribed and be expedited and be made available to the parties and the husband arrange service by facsimile transmission of such reasons on the said Family Advocate.

13. That the application of the husband filed 15 October 2008 be adjourned to 9.45am on 16 December 2008 in the Senior Registrar’s list of cases with a right to both the husband and the wife to abridge time upon the wife returning to Australia by urgent request to the Personal Assistant to the Senior Registrar.

IT IS NOTED that publication of this judgment under the pseudonym Carpenter & Carpenter is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9423 of 2008

MR CARPENTER

Applicant

And

MS CARPENTER

Respondent

REASONS FOR JUDGMENT

1. This is an application that has been brought on urgently this afternoon in the judicial duty list without notice to the wife.  It is a most unusual application, but I am satisfied that, by virtue of the evidence presented in the affidavit of the husband filed this day, that the conditions of s 69E(1)(c) are met in that the husband is an Australian citizen.  The unusual feature of the case is that the two children, R - who is just five years of age - and T - just three years of age - are currently living with the wife in South Africa. The background is comprehensively set out in the affidavit of the husband.  What he says is that unilaterally his wife retained the children in South Africa and, as a consequence, commenced proceedings under the Hague Convention. 

2. The result of those proceedings was that an order was made on or about 30 September this year in terms that I will specifically refer to in a moment.  The important part of those orders is that they are preconditions to the wife returning the two children to Australia.  What has precipitated this application is that the court in South Africa has made clear that it will not force the wife to return the children to Australia without orders of a mirror nature being made in Australia, which would effectively enable the court to be comforted that the husband will support the children in the way that was anticipated.  I am satisfied on the evidence that the order of the South African court has very clear intentions and, whilst some of the conditions that are stipulated in the proposed orders do not fit comfortably within the jurisdiction of this court, I will endeavour to set out in respect of each of the proposed orders what they mean by comparison to the preconditions sought in South Africa. 

3. What is abundantly clear is that the intention of the South African court is that the appropriate jurisdiction for the determination of these two children is Australia, and the husband as I understand it is well aware that there may be some difficulties once the children land on Australian soil, including the probability that his wife will seek to relocate the children right back from whence they came.  That is a problem for another day.  The start, however, to today's application is that to deal with it on an ex parte basis or without notice to the respondent, the application has to comply with the rules in Chapter 5 of the Family Law Rules.  The major issue there is whether there was a justifiable basis for making an order without notice to the wife. 

4. This is a most unusual situation, in that I am satisfied that the wife is well aware of the need for the husband to make this application and under the South African court's orders to make it within 30 days of when that court heard the case, so to that extent she is not disadvantaged.  In support of the ex parte application, the applicant has to show a ground.  Rule 5.12 provides that the applicant must show some urgency.  The urgency in this case, as I understand the material, is that the children are ready to come back to Australia, subject to things being completed and, more importantly, that the husband has to do things within the month.  To that extent, I am satisfied it is appropriate to make an order that the husband have leave to make the application without notice to the wife. 

5. The second problem is the question of the mandatory prohibition on the court making orders arising out of hearing an application under Part VII of the Family Law Act 1975 (Cth) (“the Act”) without the applicant filing a certificate under s 60I of the Act. I am sure that the legislature did not contemplate this matter when they passed that piece of legislation. The exception to filing a s 60I certificate lies in sub-s (9). The provisions of sub-s (9)(d) are that the application is made in circumstances of urgency. The urgency here is that the husband is obliged to make the application prior to the expiration of the month to enable the South African order to have any effect. To that extent, I am satisfied that this is an exception in s 60I.

6. The next problem relating to the jurisdiction is the one under s 69D and I have indicated already that the evidence is that the husband is an Australian citizen and the children are Australian citizens, albeit not living in Australia. The wife, I am told, is a South African citizen, but has a residency entitlement here in Australia. In the circumstances it is appropriate to make orders under Part VII of the Act. However, and most interestingly, there are other orders required of the husband outside of Part VII. The orders include that the husband pay for the wife the sum in Australian dollars equivalent to 1500 rand per week to commence when the wife arrives in Australia. That order required of the husband could only be made as an order under s 72 of the Act as a spousal maintenance claim.

7. The requirement of the South African court is that the 1500 rand equivalent support the wife and the children.  There is some question as to whether I would have jurisdiction to make an order that would cover the children.  Normally the Child Support legislation would cover that situation.  However, that legislation only covers children resident in Australia and as these children are not, but are Australian citizens, it is probable that there is jurisdiction to make the order anyway.  The dilemma is, of course, that the wife has not made the application, but that is a matter that may need to be contemplated in the future.  One way or the other in discussion, I have made it clear that the husband is consenting to a spousal maintenance order of 1500 rand equivalent per week and he will need to show circumstances justifying a variation of that order if there are also Child Support obligations that follow. 

8. The next problem arises from the fact that there is also a requirement in South Africa that the husband give the wife sole use and occupancy of the home in U, Victoria. That order is an order under s 114 of the Act, which gives the court power to make injunctions - including injunctions relating to the matrimonial home - in circumstances where the court is satisfied that it is proper. It seems to me to be an unusual situation here where the husband wants the children back on Australian soil and, to a large degree, the South African court has indicated that the only way the order will be made sending them back is if he agrees to the sole use and occupancy order under s 114 of the Act. He is effectively making an admission against interest here, so to that extent I am satisfied that it is proper to make the order under s 114 of the Act.

9. There are other orders sought in relation to medical and dental expenses relating to the wife and the children. The medical and dental expenses for the wife are clearly covered under the s 72 provisions relating to spousal maintenance and it is probably arguable that the children's expenses are covered by virtue of the provisions of s 123 of the Child Support (Assessment) Act 1989 (Cth).  One way or the other, it is again an admission against interest and I am presuming that, notwithstanding this is the simplest way to make the problem resolved, I am conscious of the fact that I can only make orders that I have power to make.  I am satisfied in these circumstances, however, that the husband clearly intends to cover the medical and dental expenses for the children as well as for his wife.

10. There are some other orders that need to be mentioned as well. One relates to the payment of the various expenses associated with the travel - again, for both the wife and the children - and the same provisions in relation to the travel for the children apply as those relating to the medical and dental expenses that I have just mentioned. In relation to the wife's travel expenses, I have little doubt there is jurisdiction to make that order under s 72 of the Act. There is one other matter before I deal with the question of the involvement of the State Central Authority, and that is that the South African court requires the husband to agree to an order that he spends time with the children and has reasonable access to them as is agreed between the parties under the supervision of the Central Authority of Australia.

11. Dealing firstly with the use of the words "reasonable access", access is not a term used in the Australian legislation.  It was removed from the legislation a number of years ago, as it suggests some form of possession or proprietary interest in children.  The words used in the draft application by the husband are that he "spends time with the children", and that is what I understand the order in South Africa to mean.  In my view, those terms are interchangeable.  More importantly, however, the husband is required by the South African court to agree to an order that he spend time with the children as may be agreed between the parties.  The difficulty with that particular order is that I am putting the children into the hands of two people who, for one reason or another, don't seem to be able to sort out their problems and I have little confidence, on what I have read, that they will be able to reach agreement.

12. The husband has been made well aware from discussions that I have had with counsel today that it may mean that he must make an application urgently when the children are on the Australian soil because there may be no agreement between the parties.  The South African court goes on, under the same heading, to say that any agreement between the parties is to be under the supervision of the Central Authority of Australia.  Like South Africa, Australia is a large continent and the Central Authority of Australia has delegated its various responsibilities to the State Central Authority bodies and, in Victoria that is the Department of Human Services.

13. I am not at all confident that the Department of Human Services will want to have anything to do with this case, particularly having regard to the fact that it is a state organisation, rather than a Commonwealth organisation; and to the extent that the South African court requires the order to be that the State Central Authority have the supervision of these orders, I am happy to make that order, knowing that it is unlikely that the State Central Authority will participate.  To that extent, it may again be a matter that can be sorted out on Australian soil when the children return.

14. Finally, there is an order proposed by the South African court, to which the husband consents, that the parties are to cooperate fully with the Central Authority of Australia, the relevant courts and any professionals approved by the Central Authority to conduct any assessment to determine the future relationships and arrangements for the children that are in their best interests.  The problem with that particular order is that the Central Authority again may not be interested in participating in that, so to that extent, once the children are on Australian soil, the matter may very well become the problem of the Australian courts.

15. If that is the case, we have a very competent, in-house team of family consultants who would provide expert assistance to the court as to what best meets the interests of these children.  It would be my view that, subject to availability when the matter does return to the court, an order along those lines bring into play the involvement of the family consultant and then be made.  In the circumstances, this is a case where - although the circumstances are very unusual - it is appropriate to make the orders and I shall do so in the following terms.

I certify that the preceding Fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  17 October 2008