Crowther and Mather

[2012] FamCA 240

FAMILY COURT OF AUSTRALIA

CROWTHER & MATHER [2012] FamCA 240

FAMILY LAW – CHILDREN – Ex Parte hearing

Family Law Act 1975 (Cth)

APPLICANT: Mr Crowther

RESPONDENT: Ms Mather

FILE NUMBER: TVC 991 of 2011

DATE DELIVERED: 27 March 2012

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Murphy J

HEARING DATE: 27 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms J Mayes

SOLICITOR FOR THE APPLICANT: Rapid Legal Solutions

THE RESPONDENT: No appearance

Orders

IT IS ORDERED UNTIL FURTHER ORDER

1. That the proceedings be heard ex parte.

2. That Order 1.1(c) of the Orders made by consent on 22 September 2011 in the Family Court of Australia be varied as follows:

   a.by discharging paragraph 1.1(c) thereof; and

   b.by inserting in lieu the following:

   (c)That the father have sole parental responsibility for arranging the collection of M CROWTHER born … .7.1997 from B School, Town C and this Order shall operate as authority so as to permit only the father, or Mr N and/or Ms N, or such other responsible adult whom the father alone may nominate in writing, to collect the said child from school.

3. That the Mother do all such things and sign all such documents as might be necessary so as to enable the Father to obtain a passport on behalf of, and for a passport to issue for, the child L CROWTHER born … .2.1995.

4. That the father forthwith instruct his solicitors to engage the services of a process server and thereafter instruct the said process server to make all reasonable attempts to effect personal service upon the mother within fourteen (14) days of today at all such addresses of which he becomes aware and, failing knowledge of any other address, at … D Street, Town C.

5. That, at the expiration of a period of fourteen (14) days from today, and in the event that personal service has not been effected, the husband shall cause his solicitors to file an affidavit from the process server to that effect.

6. In the event that an affidavit is filed in accordance with the previous paragraph of these orders, the father shall cause his solicitors to effect service by post, by forwarding each and all documents filed in these proceedings, including the affidavits filed by leave today deposing as to attempts at service, the affidavit contemplated by paragraph (5) of these Orders and these Orders themselves to:

   a.The wife at … D Street, Town C or such further or other address of which the father becomes aware at which the wife might be found; and

   b.E Law Firm, PO Box …, Town C.

7. Notwithstanding any provision of the Family Law Rules 2004 to the contrary, service effected in accordance with the previous paragraph of these orders shall be deemed to be effective service upon the wife.

8. In the event that service is effected in accordance with paragraph (6) of these Orders, the father shall cause his solicitors to file an affidavit of service deposing to that effect.

9. That the application filed by the Father on 20 March 2012 be adjourned for further hearing before Justice Murphy on a date and time to be advised as soon as can be arranged after service in accordance with these Orders, with such hearing to take place by way of video link-up.

10. In the event that the parties reach agreement in respect of the issues outstanding between them, they be at liberty to forward via joint e-mail communication to … proposed minutes of consent and, if considered appropriate:

    a.Orders will be made by consent in chambers without the necessity of further appearance; and

    b.The hearing contemplated by paragraph (9) of these orders shall be vacated.

11. That costs be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Crowther & Mather has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: TVC 991 of 2011

Mr Crowther

Applicant

And

Ms Mather

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 22 September 2011, final orders were made by consent between the father and mother, relevantly in respect of parenting orders for L, born in February 1995 and M, born in July 1997.  It will be observed that L and M are now, respectively, about 17 and 14½. 

2. It seems that some conflict has attended the arrangements provided for in those orders, the gravamen of which is that the parents would share care of the children in accordance with their “week-on week-off” work rosters, to which each of them are subject as a result of their employment. 

3. Issues between the parties came to a head, it seems, as a result of actions taken by M when he took it upon himself to leave the mother’s residence.  The police became involved.  He eventually made his way to the home of a relative, and he, together with L, have been living with their father, at all such times as he is available when not at work, since that time. 

4. Crucial to the events just described is a hand-written letter from the mother directed to the children on about 6 February 2012.  It seems that the letter coincided also with some contact, or attempted contact, by her with them on Facebook. 

5. The letter is a sad document, but has been described in the material on behalf of the father as a “renunciation letter”.  There is no doubt, in terms, the letter suggests that, as it were, the mother is bowing out of the children’s lives.  She goes so far as to say, for example:

   I don’t know when I’ll see youse again – I’ll be away for a while – I have lots to organise.  I’m having the locks changed on the house so you need to give your keys to Nan or Pop ASAP.  Do not go into the house, or leave the dogs there any more.  Your dad will need to make the arrangements.  I know this is hard for you both.  It’s 10 times harder for me, but it has to be done now.

6. The letter goes on:

   When the time is right, we will see each other again, but until then, know that you are both in my thoughts every day and that I love you both, and I am forever proud of my cherubs of joy…

7. The affidavit of the father deposes to an attempt by the mother about two days later to “reinstate contact with the children”.  It is said by him, however, that neither of the children want to see, or have any contact with, their mother. 

8. One might have hoped that these sad circumstances, involving mature children including one who is but nine months away from being an adult, would have seen both parents suggest to the children that they, together with the children, should consult an appropriately qualified expert in an attempt to have their children’s desires, wishes and, one would hope, innermost thoughts discussed, understood and be shown to them to have been accepted by each parent.

9. In lieu of that, what transpired was correspondence between solicitors that, in my view, did nothing other than exacerbate the already difficult situation.  That has resulted in an application brought on an urgent ex parte basis. 

10. That application is preceded by correspondence between solicitors for the father and mother.  That correspondence makes various assertions and counter-assertions. Nowhere in that correspondence does either solicitor suggest that, consistent with the Objects and Principles of Part VII of the Act, that each of the parties might sit down – particularly in light of the fact that the final parenting orders were reached by consent – so as to hear what the children had to say, and to attempt to arrive at a sensible solution that met their needs and dealt with the emergent situation resulting from the fact that a 14½ year old boy had left the care of one parent in circumstances where each of the parents are away working for a week at a time. 

11. Attempts were made to effect service on the mother.  Difficulties attended that process and the process leading up to this hearing on the part of the solicitors for the father.  The recent “mini-tornado” that affected Townsville, and the significant rainfall with flooding in parts of the Burdekin affected the capacity for communication and preparation of this matter.  Filed by leave today is an affidavit by the father’s solicitor where those difficulties are deposed to.

12. Also filed today is an affidavit by Mr R, who can be described as a process server.  He indicates that he attended at the last known place of address of the mother, … D Street, Town C, on three occasions on Friday, 23 March 2012, 3.00pm, 6.00pm and 7.30pm, but no one was at that address. 

13. The affidavit goes on to depose that he again attended at that address on 24 March at 11.00am and 7.30pm, but again, there was no one at that address. Similarly, an attendance occurred on 25 March 2012 at 10.00am and on 26 March 2012, but there was no one at that address.

14. Service was purportedly effected by the solicitors for the father upon the solicitors for the mother on 21 March 2012. 

15. It might be observed that when that attempt at service was effected, there had been correspondence passing between those solicitors and the solicitors for the father for a period of about a month since early February 2012. 

16. It might be thought that, in light of the fact that it was not certain whether the mother would be personally served and the proceedings were being brought on an urgent basis, that those documents were “served” on the solicitors for the wife as a matter of professional courtesy.

17. Indeed, I would have expected, in light of the fact that correspondence had been passing between solicitors for a month or so, that – as a matter of professional courtesy – those solicitors would have been given a copy of the documents even if, as in fact was the case, they did not have instructions to accept service on behalf of their client. 

18. On 22 March 2012, the solicitors for the mother wrote to the registrar of the Court annexing a letter bearing that date addressed to the father’s solicitors. That letter points out that the solicitors for the mother did not, and do not, hold instructions to accept service on behalf of the mother. Reference is made to rule 7.08 of the Family Law Rules.

19. It is plain that service was not effected in the manner in which it purported to be carried out on the solicitors for the mother.  Accordingly, these proceedings before me are said to need hearing on an ex parte basis. 

20. The rules provide for a number of specific criteria if a matter is to be heard in that manner.  In short compass, the Court needs to be persuaded that by reasons of urgency and, relevantly, in the best interests of two children, an order ought be made, despite the fact that the mother has not been served with the material formally and is not able to present a case.

21. The application filed on behalf of the father seeks a number of parenting orders that would effect a significant change to those which were made by consent on 22 September 2011. 

22. Sensibly and properly, Ms Mayes, who appears as counsel for the father, indicates that, in light of the fact that these proceedings are being heard on an urgent ex parte basis, all of the orders there set out are not sought today. 

23. The urgency, Ms Mayes contends, is confined to two matters:  the first is that by reason of the specific provisions of the consent orders made 22 September 2011, the school (quite properly and appropriately) refuses to hand M, who attends there, to the maternal aunt and uncle, Mr and Ms N.

24. The school is placed in the position of needing to be seen to effect compliance with a court order in circumstances where the two parents who have parental responsibility for the children are in conflict.  Nothing before this Court indicates that the school has behaved otherwise than in an entirely appropriate manner. 

25. It is said that, in circumstances where the children have effectively left the half-time care of their mother in the circumstances just described, an order is needed so as to facilitate the school handing M into the care of Mr and Ms N where that occurs while the father is working.

26. Specific urgency is said to attend that by reason of the fact that such a changeover needs to occur at the forthcoming Easter school holidays when the father will be working. 

27. It seems to me that, in the circumstances earlier described, particularly in light of the letter written by the mother to which I have referred; the mature ages of the two children; and the circumstances in which M has, it seems, left the care of his mother in circumstances yet to be properly established by evidence, the intervention of this Court is necessary so as to permit the school to facilitate M coming into the care of his father (albeit through the agency of people other than his father) when he is absent working.

28. Accordingly, I propose to make an order to that effect. 

29. I should say that this order, together with the other order that I will make to which I will refer in a moment, is made in circumstances where I will order personal service to be effected at the address in Town C last known for the mother within a period of 14 days, and for attempts to be made within that 14-day period for personal service to occur, failing which, there be service by post at that address and service by post to the solicitors for the father will be deemed effective service of the material in support of this application together with the orders I am about to make.

30. That having occurred, this matter will be returned before me.  It is likely that I will be sitting in another registry on that return date, and the proceedings will be heard via video link at a time and on a date as soon as can be arranged after service has been effected in the manner to which I have just described. 

31. I will also direct that a copy of these ex tempore reasons be expedited, and, upon my settling them, they be served upon the parties in the manner earlier indicated as soon as is practicable thereafter.

32. The other matter said to need urgent ex parte relief relates to a proposed school trip to be undertaken by L through the agency of the school which he attends. 

33. That is the subject of a letter dated 9 March 2012 sent by the father’s solicitors to the mother’s solicitors.  That letter is followed up by a subsequent letter on 14 March 2012.  It is said that no response has been received to either of those pieces of correspondence. 

34. In short, that letter outlines the fact that L, who, I observe, is 17 years and three months of age:

    …has been offered the opportunity to travel to Japan as part of a school tour…

35. L obviously needs a passport to effect that trip and does not hold one.  The letter goes on to say:

    We advise that the tour of Japan organised by [the school] will be entirely supervised by the school and presents the opportunity of a lifetime for [L] to travel overseas.

    We note that [L] must confirm to [the school] whether he intends to attend the tour of Japan prior to 26 March 2012.  Accordingly, we request, with some urgency, your client’s approval to apply for an Australian passport for [L].

36. The fact that L is nine months away from being an adult, at which time he could apply for his own passport, is, as it seems to me, a significant consideration.  So too is the fact that a boy – indeed, a young man – of this age plainly wishes to avail himself of what I think is accurately described as “the opportunity of a lifetime”. 

37. Ms Mayes submits that there could be no reasonable justification for refusing the request made in two letters on 9 March and 14 March 2012.  So much, it seems to me, is clear on the evidence before me, noting, of course, that these are ex parte proceedings, and the mother has been afforded no opportunity to be heard in respect of that issue.

38. It is said, accurately as it seems to me, that a substantial deposit needs to be paid and confirmation of L’s attendance on the trip indicated to the school prior to 26 March 2012.  I note this matter is being heard on 27 March 2012. 

39. I am persuaded that there is significant urgency attached to that issue and that, in turn it is directly relevant to the best interests of a child who is shortly to be an adult, such that I am persuaded I ought make an ex parte order.  I consider on the evidence before me that such an order is plainly in L’s best interests.

40. Accordingly, I shall make an order to the effect that the father shall be empowered and authorised to himself apply for a passport in the name of L so as to facilitate his travel overseas for that trip. 

41. I should add that the application, in terms, seeks orders in respect of a passport for both children.  There is no evidence before me, as Ms Mayes properly concedes, to suggest that such an order ought be made in respect of M at the present time. 

42. For those reasons, then, I will make only the orders to which I have made reference. 

43. I will adjourn the further hearing of the application filed by the father on 20 March 2012 to a date and time to be advised before me, such proceedings likely to be by way of video link.

44. I will reserve the question of costs.  I will ensure that a copy of the orders will be sealed today, or failing that, first thing tomorrow morning. I will ask that the transcript of these ex tempore reasons be expedited. 

45. I will include in the orders a provision that the reasons for judgment be served in the manner to which I have earlier indicated when they issue and are edited.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 27 March 2012.

Associate: 

Date:  20 April 2012