CONLAN & TOMLINSON

[2018] FamCA 832

FAMILY COURT OF AUSTRALIA

CONLAN & TOMLINSON [2018] FamCA 832

FAMILY LAW – ENFORCEMENT – Procedural Orders – Respondent fails to attend.

FAMILY LAW – CHILDREN – Parenting – Where the mother is potentially an international flight risk without some explanation for her absence.

Family Law Act 1975 (Cth)

APPLICANT: Mr Conlan

RESPONDENT: Ms Tomlinson

FILE NUMBER: AYC 59 of 2013

DATE DELIVERED: 10 October 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 10 October 2018

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: No Appearance

Orders

IT IS ORDERED THAT

1. All extant applications be adjourned to 1 November 2018 at 10:00am before the Honourable Justice Cronin (“the adjourned date”).

2. The Respondent appear in person on the adjourned date

3. If the Respondent fails to appear on the adjourned date, then the Applicant have liberty to seek a warrant for her arrest.

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. Paragraphs 8 and 10 of the Orders of this Court made on 31 October 2017 are suspended.

2. That each of MR CONLAN born 17 October 1970, and MS TOMLINSON born 16 October 1970, their servants and/or agents be and is hereby restrained from removing or attempting to remove or causing or permitting the removal of the child X born … 2010 (a female) (“the child”) and the child is restrained from leaving the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to the preceding Order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List for a period of two years from the date of these orders.

3. That upon expiration of the period referred to and subject to any order of a court of competent jurisdiction, the Australia Federal Police will remove the child’s name from the Watch List NOTING THAT if either party seeks that the child’s name remain on the Watch List for a period beyond the two year period, that party must file and serve an application and an affidavit setting out the evidence to support such application.

4. That 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.

IT IS FURTHER ORDERED

1. The reasons this day be transcribed.

2. That 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 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

EX-TEMPORE REASONS FOR JUDGMENT

1. There are two applications before the Court today, which were listed from two different times.  The first was an application in a case filed on 30 July 2018.  It seeks enforcement of an order made on 17 November 2017 that Ms Tomlinson (“the mother”) pay Mr Conlan (“the father”) $5,000 in costs. Whatever arrangements had been made between the parties between that date and now, the order has not been complied with.  The application is to enforce the order.

2. The application in itself asks the Court to reiterate what it already said in November last year.  To that extent, it is a pointless exercise.  However, there is a second order that seeks that the mother hand in her passport until she pays.  That too seems to me to be a pointless exercise, because apart from the fact that the mother has not complied with the order from November – why would the Court conclude that she would comply with this order?  So to that extent it seems unnecessary. 

3. Importantly, I am satisfied that the mother has been served with the application and this document has been in her possession for some time.  She was called this morning and did not appear.  A cursory examination of the application shows it seeks enforcement orders.  In respect of an enforcement hearing, the document has attached to it, under the heading of Important Notices to the Respondent, a couple of things.  The first is that she should seek legal advice about the application.  The second reads as follows:

   If you fail to attend the enforcement hearing, a warrant may issue for your arrest. There may be serious consequences if you fail to comply with the requirements in the rules in relation to an enforcement hearing.

4. In my view, the only way this matter is going to be resolved is if the mother is in attendance, because the father appears to have no idea what her financial circumstances are, to the extent not only of where she is working but also whether she has such things as a motor car.  It is compounded by the fact that there is a seven year old child.  He does not even seem to know which school the child will be attending when school resumes very shortly.

5. Having been warned that the absence of attendance may lead to the issue of a warrant, the father, who does not have legal representation, seeks to warn the mother that should she fail to attend on the date that I propose to fix, he is at liberty to apply for that warrant.  If that warrant is to issue, she may find herself in the very uncomfortable position of being brought by the relevant police.

6. There is a second application that was filed by the father on 3 October 2018.  To say the least, it is a little messy.  It seeks by way of substantive orders that parenting orders made on 31 October 2017 be discharged and that X (“the child”), who is the child aged seven that I earlier mentioned, remain on the family law watch-list.

7. There is obviously a problem with that order, because the orders of the Court in October 2017 made specific provision for the child to be able to travel internationally upon a certain notice being given.  It seems that at least some of that notice has been given.  However, the problem arises because it seems that the mother has indicated that she will not necessarily be returning from the United Kingdom.  All of that flies in the very face of the order made by the Court in October 2017 that these parties have equal shared parental responsibility.  It sounds remarkably like some unilateral action has been taken here.  The Court is critical of that sort of approach in parenting matters.

8. In the circumstances, rather than transfer the matter to the Federal Circuit Court as the father contemplates, it seems to me the application for parenting orders should stay here, to avoid the prospect that albeit it might be more convenient for the matter to be dealt with on circuit in Albury, this Court may end up having the case sent back to it because it was only a year ago that the orders were made.

9. That, then, leads to the nature of the interim application which is before the Court today.  That seeks an order that the child be placed on the family law watch-list.  The order actually seeks that both parties be restrained from removing the child from the Commonwealth of Australia.  The circumstances to which I have already referred and to which the mother has not responded, notwithstanding that the application was filed over a week ago, give me little comfort that she is going to be cooperative.

10. On that basis, it seems to me that at least until further order, the child should not leave the Commonwealth of Australia.  Albeit the Court should not have a kneejerk reaction to someone’s fears unless they are of some substance, it seems to me here that the father has a basis to say that he is concerned about what the mother is doing, because on what he knows, there is no indication as to where the child is even going to school next week.  There is no indication as to exactly how the trip to the United Kingdom is going to come to an end.  Under those circumstances, until such time as it is much clearer and the orders can be clarified, it seems to me that the child should remain on the family law watch-list and the Court can review the matter on 1 November. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 10 October 2018.

Acting Associate:

Date:  17 October 2018