Conlan and Tomlinson (No 2)
[2018] FamCA 889
•2 November 2018
FAMILY COURT OF AUSTRALIA
| CONLAN & TOMLINSON (NO. 2) | [2018] FamCA 889 |
| FAMILY LAW – CHILDREN – Communication – where the parties’ communication skills were appalling and the order for equal shared parental responsibility made by the trial judge in 2017 was inoperative – where the Court ordered the parties to attend upon a social scientist in their local area for the purposes of endeavouring to sort out their problems – Education – where the mother had removed the seven-year-old child from school and not gave an explanation – consideration as to whether or not the child should return to school or be “home-schooled” for the remaining six weeks of 2018 – order made that it might be better for the child to remain in the home-schooling environment until the end of the year– International travel – where the trial judge had made an order in 2017 that the mother could travel internationally with the child – where the mother had given mixed messages to the father about what she intended to do notwithstanding the limitations in the final orders as to travel – where the Court is satisfied that the mother understood the risks she was taking if she failed to comply – permission to travel internationally granted. FAMILY LAW – ENFORCEMENT – where a costs order was made against the mother – where no payment was made and the father issued enforcement proceedings – where the mother paid the debt and interest prior to the hearing but after the issue of proceedings – where the father sought costs thrown away – order made. |
| Family Law Act 1975 (Cth) Federal Circuit Court Rules 2001 (Cth) |
| Conlan & Tomlinson [2017] FamCA 895 Gin & Hing [2010] FamCA 617 approved in Lorde & Chu [2015] FamCAFC 3 |
| APPLICANT: | Mr Conlan |
| RESPONDENT: | Ms Tomlinson |
| FILE NUMBER: | AYC | 59 | of | 2013 |
| DATE DELIVERED: | 2 November 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 1 November 2018 |
REPRESENTATION
| THE APPLICANT: | In Person |
| THE RESPONDENT: | In Person |
Orders
IT IS ORDERED THAT
By 4:00 pm on 8 November 2018, the Respondent pay to the Applicant through his solicitors, the sum of $528.50 toward his costs.
The Respondent pay to the Applicant through his solicitors, a further $100 to satisfy the balance of the costs arising from the Orders made on 17 November 2017, unless she establishes that by 4:00 pm on 8 November 2018 that the payment was made to the Applicant’s solicitors trust account in April 2018.
Paragraphs 5 & 6 of the Orders of this Court made on 10
October 2018 be discharged.
The child X born … 2010 (“the Child”) be permitted to leave the Commonwealth of Australia AND IT IS DIRECTED that the Australian Federal Police remove the name of the said Child from the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia.
A copy of this order be sent immediately to the AFP Operations Coordination Centre by the Melbourne Registry of the Family Court of Australia AND IT IS REQUESTED that the Australian Federal Police give force and effect to this order.
Paragraph 4 of the Orders of this Court made on 10 October 2018, relating to the suspension of the final orders made on 31 October 2017, be discharged.
Pursuant to s65Y of the Family Law Act 1975 (Cth) the Child may travel internationally subject to the conditions in Orders 7 and 10 of the Orders made by this Court on 31 October 2017.
Both the Applicant and Respondent attend upon Mr HH (psychologist) of the II Group in D Town for the purposes of:
(a) Working out a framework for their communication with one another;
(b) Alleviating the anxiety of the Child in relation to discussing issues with either parent;
(c) Arranging for the return of the Child to mainstream schooling in the first term of the 2019 school year.
Any costs associated with the attendance on Mr HH (or such other psychologist as the parties agree) shall be met equally by the parties.
If the parties are unable to see Mr HH for whatever reason and cannot agree upon an alternate expert, either party have liberty to apply and such application be urgently listed before the Senior Registrar.
If the parties do not reach agreement by 7 December 2018 upon a school for the Child to attend in 2019, either party have liberty to apply and such application be urgently listed before the Senior Registrar.
The Child continue to have tutoring as currently organised by the Respondent until the end of the 2018 school year, save that the Respondent have permission to remove the Child from the Commonwealth of Australia for the purposes of international travel to the United Kingdom, but not before 13 December 2018.
All extant applications are adjourned to Tuesday 12 February 2019 at 10:00 am before the Honourable Justice Gill (sitting in Melbourne) for determination as to whether or not further parenting proceedings require judicial intervention and/or whether the proceedings should be transferred to the Federal Circuit Court of Australia.
The interim orders as sought in the Amended Initiating Application filed 26 October 2018 and the Application in a Case filed 30 July 2018 are otherwise dismissed.
The reasons for judgment this day be made available to the Senior Registrar forthwith.
Pursuant to Sections 65DA(2) and 62B 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Conlan & Tomlinson (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: AYC 59 of 2013
| Mr Conlan |
Applicant
And
| Ms Tomlinson |
Respondent
REASONS FOR JUDGMENT
Before the Court are two applications by Mr Conlan (“the father”). The respondent in each is Ms Tomlinson (“the mother”).
Each party appeared unrepresented. In Neil v Nott [1994] HCA 23; 68 ALJR 509; 121 ALR 148, the High Court of Australia observed that “a frequent consequence of self-representation is that the Court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.” This was such a case. I took the unorthodox approach of having a discussion with each party in turn in relation to the discrete issues, and at the end, each party gave oral evidence that what they had told me was not only their evidence but also the truth. The other party in each case then had the opportunity to cross-examine on issues of concern.
The mother and the father have a long history of litigation which began in 2013 and culminated in final orders made by Thornton J on 31 October 2017[1]. I need to return to those parenting orders in a moment. On 17 November 2017, Thornton J after considering what her Honour described as “minutes of consent orders”, made an order that the mother pay the father $5,000 costs within six months. It is this costs order that reactivated the litigation process.
[1]Conlan & Tomlinson [2017] FamCA 895
By an application in a case filed by the father on 30 July 2018, he sought that the mother comply with the order for costs plus interest and that she also pay $930 pursuant to the Federal Circuit Court Rules 2001 (Cth). That was a curious provision, bearing in mind that the proceedings were in this Court. However, the application went further, and sought an order that the mother deliver her passport to his solicitors only to have it returned upon payment of all monies received. That application was supported by an affidavit to which the mother made no response.
Notwithstanding the proceedings were prepared by the father’s solicitor, he attended the hearing on 10 October 2018 to represent himself. By that time, another issue in relation to parenting had arisen and I return to that also below.
The mother not only filed no material but she did not attend the hearing on 10 October 2018. I declined at the time to repeat the order that the mother pay the obligations she had under the 17 November 2017 order because that would be simply reiterating something that had already been ordered. It was with some difficulty that I explained to the father that this was about enforcement of orders not reiterating them. In the absence of the mother, little could be done because the father maintained that he knew nothing about the mother’s financial position. That precipitated the matter being adjourned to 1 November 2018 with a direction that the mother attend failing which a warrant may be issued for her arrest[2].
[2]Conlan & Tomlinson [2018] FamCA 832
In the period of time between 10 October 2018 and 1 November 2018, the mother paid all that was owing under the 17 November 2017 orders save for a dispute between the parties over $100. The mother’s evidence was that she had put $100 into the trust account of the solicitors for the father but his position was that there was no record. Neither party had any records to show who was correct and accordingly, I have made an order that the mother pay $100 subject to her establishing that she has otherwise already paid it.
The second issue related to the costs that the father had incurred in enforcing the order from 17 November 2017.
The facts in respect of this issue are simple. Thornton J made an order that the mother pay the costs by 17 of May 2018. The mother did not pay them and a letter of demand followed. The mother made an offer of modest instalments which the father rejected. The mother said that there was the payment of the $100 about which there appears at this stage, to be no record. By July, as the father had heard nothing, he issued the proceedings. Subsequent to his endeavours, the mother has paid the amount required (subject to the $100 issue).
The father cross-examined the mother about her financial circumstances and on that evidence, I would be satisfied that no enforcement order would currently be successful. She has no property or employment; any attachment or garnishment orders could not be successful. However, the mother told the Court that she had made an arrangement with her parents in the United Kingdom to have all amounts outstanding paid by 8 November 2018. She agreed that an order could be made to that effect if any order of the cost was made
Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that in proceedings under the Act, each party shall bear their own costs unless there are circumstances to justify a departure from that principle. If the Court decides that there is such a circumstance, it still cannot make an order for costs unless it first considers the matter set out in s 117(2A) of the Act.
I am satisfied in this case that there are circumstances that justify departure from the principle. The time for the payment had expired and no serious attempt was made by the mother to resolve the debt, bearing in mind it is a principle in Australia that a debtor should chase a creditor. Ultimately, the impasse led to the father taking the only steps open to him in circumstances where there were no offers that would have met not just his satisfaction that the intention of the orders of Thornton J.
Having been satisfied that there is a circumstance here, it is timely to remember that an order for costs is not designed as a punishment, but rather as compensating the person who had to be engaged in the litigation to obtain their lawful rights.
Having regard to the unusual financial circumstances of the mother and her offer to make a payment within seven days, there is no necessity for me to contemplate all the other matters in s 117(2A) of the Act.
The issue remaining concerns the quantum. As I already observed, the solicitor for the father had looked at the scale under the Federal Circuit Court Rules 2001 (Cth), which endeavours to deal with matters by way of lump sum. In my view, looking not only at that, but also the costs actually incurred by the father which exceed $2000, I will exercise to my discretion. Taking into account the letter of demand and the drawing of the relevant application in a case and affidavit which was modestly short, I fix the amount of costs at $528.50.
The second issue concerned overseas travel to the United Kingdom and Europe in particular, for the parties’ child X (“the child”) who is now almost 8 years of age.
Indicative of the nature of the communication level between the parents, much is in dispute between them. The mother said that notwithstanding the order of Thornton J in October 2017 for equal shared parental responsibility of the child, the father told her in February 2018 that she could make all the decisions. The father’s response to that was that his agreement along those lines was confined to discrete issues. Needless to say, subsequent to February 2018, there has been virtually no communication between the parties about the child and that led to a matter to which I turn in a moment in relation to her schooling.
Part of the problem arising from the lack of communication also was the fact that the mother told the father that she wanted to go to the United Kingdom which is her land of birth. She is a health professional by occupation, and to improve her career prospects, she needs to train further which she said she could not do in the rural area where she currently lives. The solution was to go back to the United Kingdom to advance her skills and then come back to Australia.
The father thought that what he was being told was that the mother was going back to the United Kingdom for 12 months. That would have flown in the face of the orders of Thornton J. The mother’s position which I heard for the first time in evidence before the Court was that she wanted to go back for three months. Either way, the father did not agree. The mother’s sworn evidence is that she accepted that he had rejected that and all she now wanted to do was to go to the United Kingdom for a holiday with the child. Thornton J had contemplated that. Paragraph (7) of the orders of 31 October 2017 reads as follows:
(7) The mother be permitted to elect to travel with the child for the long summer holiday period in 2018 and in each alternate year thereafter conditional upon the mother:
(a) Providing to the father at least one month notice prior to the term three school holidays of her intention to travel;
(b) Providing to the father at least one month prior to travel, unless otherwise agreed, copies of return airline tickets or proof of purchase of same for the child;
(c) Providing to the father at least one month prior to travel, unless otherwise agreed, an itinerary of intended destinations;
(d) Providing to the father details of arrangements for telephone and or Skype communication to enable the child to telephone/Skype the father at least weekly during the trip;
(e) Being restricted to travelling to countries which are signatory to The Hague Convention on the Civil Aspects of International Child Abduction.
Paragraph (10) of those orders reads as follows:
(10) Subject to Order (7) herein, each parent be permitted to travel overseas with the child during any period of holiday time that the child would otherwise be spending with that parent pursuant to these Orders, provided:
(a) the travelling parent providing to the non-travelling parent:
(i)at least one school term’s notice of their intention to travel;
(ii)at least one month prior to travel, unless otherwise agreed:
A.copies of return airline tickets or proof of purchase of same for the child; and
B.an itinerary of intended destinations including an address and contact details of any booked accommodation;
(b) details of arrangements for telephone and or Skype communication to enable the child to telephone/Skype the non-travelling parent at least weekly during the trip;
(c) the travel being restricted to countries which are signatory to The Hague Convention on the Civil Aspects of International Child Abduction.
Notwithstanding the orders provided that the mother could take the child for the whole of the summer holidays, she said that she intended to be back somewhere around the 15th or 16th of January 2019. She cannot go anywhere at this stage because the father holds the child’s passport.
In her evidence, the mother acknowledged that she understood the consequences of the failure to comply with the order. She began by saying that those consequences were that she could be imprisoned and that she could also lose the responsibilities for the care of the child. I directed her attention to the issues associated with the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) which is referred to in the orders of Thornton J of 31 October 2017. The father’s evidence was that he was concerned about the cost of proceedings brought under the Hague Convention, but as I indicated to him, the speed and cost will depend upon how quickly he was involved with the state central authority. That gave him some comfort.
To his credit, the father said that he wanted the child to have the benefit of learning about her relatives in the United Kingdom. I contemplated and asked the mother about confining her travels to the United Kingdom and she indicated that that would be difficult for the child because her maternal grandparents have apparently made arrangements to take the child to continental Europe.
Section 65Y of the Act provides that if there is a parenting order in force, a person must not take a child from Australia except as permitted under a court order or with the consent of the other party. The Court in October 2017 granted the mother that permission. The father was appropriately concerned about what the mother was doing to bring the application before the Court in early October 2018 at which time, in the absence of the mother, I suspended the child’s right to travel. The application before the Court now is to review that order.
In respect of the orders that were made by Thornton J, her Honour said:
[403]I am not satisfied that there is evidence which supports the necessity of the Watch List order continuing for a period of 12 months as proposed by the father. The father was not opposed to the mother travelling overseas with the child in the long summer holidays commencing in December 2018 or to the child spending most of those holidays with the mother. This of course was on the basis that the child would be living with him. However I accept the proposal of the Independent Children’s Lawyer that it is appropriate for the mother to travel to the United Kingdom with the child earlier and in the long summer holidays which commence in December 2017. However the mother opposed the proposal that the child spend the whole of the following term holidays with the father in the event that the child spent the long summer vacation with her overseas. The mother also intends to consult a psychologist and this should occur as soon as possible.
…
[406]However commencing December 2018 the mother is permitted to elect to travel overseas with the child to visit the maternal family for the long summer holiday period and each alternative year thereafter.
There is not sufficient reasoning in her Honour’s judgement to satisfy me that the problem that the father has now encountered falls within what Thornton J was contemplating.
It is not contentious that permission from the Court to travel internationally is a matter within the exercise of the discretion of the Judge. As I have on previous occasions said, any such decision is a leap of faith but it also must be one that is exercised within the framework of the evidence presented (Gin & Hing [2010] FamCA 617 approved in Lorde & Chu [2015] FamCAFC 3).
In Line & Line (1997) FLC 92-729, the Full Court considered some of the factors relevant for the consideration of such a discretion. They were said to be:
a)The existence or otherwise of continuing ties between the departing parent and Australia;
b)The existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues);
c)The existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there); and
d)Whether the country of travel is a signatory to the Hague Convention.
To be clear, those are some of the factors relevant and therefore by no means in an exhaustive checklist. The mother has virtually no ties in Australia. She has no property in Australia and is not eligible for any Centrelink benefits because she has a property in the United Kingdom, which for reasons she explained, no person is showing any interest in, such that she is not even able to rent it out. She has a motive for wanting to remain in the United Kingdom because all of her family is there notwithstanding she concedes that at no stage has she sought to make an application for international relocation. Against that however is her clear understanding that the United Kingdom, and Europe generally, are signatories to the Hague Convention.
It is a leap of faith here, but the mother has convinced me on her evidence that she is only going for a holiday and no longer pursuing the issue of her extended qualifications. She has told me that she has rented accommodation in Australia the lease of which will expire at the end of November, but that she is actively looking for alternative accommodation. Her fear of the loss of the child was palpable and I am satisfied that there is a real prospect in this case that that might occur if she failed to comply. In the proceedings before Thornton J, the father had applied for the child to live with him. Thornton J did not accede to that application. However, her Honour found:
[365]The father has been frustrated by the mother’s behaviour and her anxiety but he has generally focussed on the best interests of the child and is a responsible parent.
With that sort of finding, the mother would be putting her care role at risk.
Balancing all of the factors, and whilst acknowledging that it is a leap of faith, I am satisfied that there are sufficient protections in place despite all of the negative aspects about employment and property. Under those circumstances, the mother should have the opportunity to take the child to the United Kingdom as contemplated by the orders of Thornton J. That will be subject to the conditions set out by those orders.
The third issue relates to the father’s application that the child be put back into school immediately for the completion of the six weeks of term four. Sadly, the matter to which I earlier referred about parental responsibility has created significant difficulties for the father here. In his conversations with the private school at which the child previously attended, he said that the school was willing to have the child back after she had been removed by the mother at the end of term three. The father learned of the child being removed from the school from the child. That is totally inappropriate. The mother’s view was that the father had abdicated the responsibility, but I reject that. To the extent that the mother interpreted what the father was saying, she needed to have incorporated that into a document that could be used for all of the major long-term decisions relating to the child’s future. Having read to her what s 65DAC of the Act says, I am satisfied she now understands the obligation she has.
The mother’s evidence was that the child had been severely bullied at the school by two children and despite assurances from the school, the child had told her that when she complained about the bullying to her teacher, she was dismissed. The child was consequently suffering nightmares, not eating at school and generally unhappy. She was not learning appropriately. Having read the reasons for judgement of Thornton J, there is certainly evidence of the child having problems in 2017.
During these proceedings, I invited the father to speak to the school because he was oblivious of any of the assertions made by the mother. On his return, he indicated that whilst there had been some problems, the school was of the view that they had dealt with those issues, and the relevant children and the school were all looking forward to the return of the child.
Whether or not there is a problem here, I am not in a position to make a finding. The evidence could not be properly tested in any objective way. The child is only seven years of age and therefore six weeks will not do a lot of harm in circumstances where the mother has arranged a professional tutor on a number of days each week to teach the child. That tutor is a qualified teacher. The father was not aware of that tutor’s name, but was given the details to enable him to make enquiries and the mother said she had no difficulties with that.
The father’s evidence was that he thought that it was not in the child’s interest to be away from school but more, she was looking forward to going back to school. When he enquired about things that were happening, such as being removed from the school, he said that the child told him that her mother had instructed her not to tell him. There are serious issues of parental responsibility at play here, not to mention the fact that the child is caught in a conflictual relationship between her parents.
This lack of communication and ongoing conflict has been extant for years and there are no signs of it abating. There is no better example of that than the views of Thornton J where her Honour said:
[375]The pessimistic evidence of the family consultant was that the conflict between the parents is unlikely to change regardless of whether any parenting orders are made for a change of residency for the child. I accept his evidence having regard to the history of this matter and the lack of insight displayed by the mother concerning her own conduct and the impact on the child. The father has also harboured unfounded suspicions that the reasons why the mother was concerned about the child’s anaphylactic reactions was to find a reason for reducing the time that he spent with the child or to find fault with his parenting. This suspicion was a feature of the father’s case which was not proved on all the evidence. However it must be noted that the mother’s difficulty communicating information to the father about the child’s appointments has contributed to his suspicion.
[376]On the evidence of Mr A the mother’s anxiety is genuine and she views the father through this prism of anxiety. I am also satisfied on all the evidence that there are reasonable grounds, based on the evidence of the doctors who assessed the child, for the mother’s concern about the child’s medical history and reaction to certain foods.
With the father being able to obtain access to the tutor and more importantly with what I turn to next, I do not consider it in the best interest of the child to make a specific order that she return to the school where there is also some debate about private school fees. The father said that he had agreed with the school to pay for the rest of the year although his preferred position is that there be no fees. He was grateful for the assistance in the past provided by the mother’s parents.
The communication between the parties and resolving the sorts of issues that were prescient before Thornton J have only worsened, as was predicted by the pessimistic evidence of the family consultant. However, both parties agreed, albeit the father more reluctantly than the mother, to attend upon a social scientist nominated by the Court for the purposes of addressing all of these issues. One issue that must be resolved is what is to happen to the child in 2019 in terms of schooling. Whilst the mother was concerned about bullying at the school that the child has attended in 2018, there should be no similar basis in another school once the child has settled down as her mother has confirmed is already evident. As such, the parties should work on the basis that the child will return to school in 2019 and not the home-schooling concept that the mother was thinking about and failing that being worked out with a social scientist by no later than the first week of December 2018, the parties will have liberty to apply to Senior Registrar FitzGibbon for an urgent hearing. I am having these reasons provided to the Senior Registrar so that he is aware that the matter can be brought on.
A further order that was sought by the father was that these proceedings be transferred to the Federal Circuit Court of Australia in D Town. I am acutely conscious of how busy that circuit is and how little time is available for contested proceedings in circumstances where there has already been one significant trial that went 6 days in 2017 before Thornton J. the child deserves better than that. I am conscious that the resident Judge in Canberra, the Honourable Justice Gill is in communication from time to time with the Federal Circuit Court Judge from Melbourne sitting in D Town and that complicated cases are from time to time transferred to his Honour from the D Town circuit. Gill J will be sitting in Melbourne in the second week of February, and I propose to adjourn the substantive proceedings before his Honour as a matter of precaution in that second week of February. His Honour can then decide whether the parties have moved on having regard to the orders that I propose to make about their involvement with a social scientist and whether the case should be dealt with more appropriately in the Federal Circuit Court and if so, on what issues Alternatively, his Honour will decide whether or not it is to or to be retained by him and the parties having to travel to Canberra.
In my view, these orders need to be made and to the child to have an opportunity to have the conflict between her parents cease.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 2 November 2018.
Acting Associate:
Date: 2 November 2018
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