Department of Community Services and Frampton

[2008] FamCA 163

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITY SERVICES & FRAMPTON [2008] FamCA 163

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Appeal and new trial – Orders discharged – Words and phrases

Family Law (Child Abduction Convention) Regulations 1986 (Cth)

Forster v Jododex Australia Pty Limited (1972) 127 CLR 421

APPLICANT: Director-General, Department of Community Services

RESPONDENT: Ms Frampton

FILE NUMBER: SYC 1445 of 2007

DATE DELIVERED: 14 January 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Le Poer Trench

HEARING DATE: 10-11 January 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Christie

SOLICITOR FOR THE APPLICANT: Department of Community Services

COUNSEL FOR THE RESPONDENT: Ms Hartstein

SOLICITOR FOR THE RESPONDENT: Slade Manwaring Solicitors

Orders

1. Declaration that the father has failed to comply with order 7 made by the Full Court on the 11^th September 2007.

2. Declaration that as a consequence of the father’s failure to comply with order 7 of the Full Court orders made the 11^th September 2007 order 3 of those same orders has lapsed and the application for the return of the child is discharged.

IT IS NOTED that publication of this judgment under the pseudonym Department of Community Services and Frampton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1445 of 2007

Director-General, Department of Community Services 

Applicant

And

Ms Frampton

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a case which requires strict application of legal principles and when that is done it seems to me the result does not reflect what was intended by the Full Court and it does not give rise to a result which can be seen to reasonably fulfil Australia’s obligations under the Hague Convention. The case does, however, illustrate what happens in children’s cases when the ambition of the Court’s orders is frustrated by the actions of the parties and the application of strict legal principles to the circumstances which evolve.

2. Ultimately in this case it seems to me that the consequence of strict time provisions not having been precisely complied with did not prejudice either of the parties. However, it led to a circumstance where the law required a determination that the orders for the return of the child L to Scotland were discharged as a consequence of well intentioned orders made by the Full Court.

3. The Full Court orders made on the 11^th September 2007 are not capable of being amended or varied either by me to render nugatory the failure of the father to strictly comply with the orders nor do I believe the orders could be varied by the Full Court.

4. The hearing before the Court requires a determination of fact as to whether the order made by the Full Court on the 11^th September 2007 for the return of the child to the United Kingdom has lapsed.

5. There are a number of matters which need to be considered in reaching a determination in this case. Those matters are as follows:-

   a)What, if anything, flows from the fact that the Full Court has made a final order against a non party to the proceedings?

   b)As there is no stipulation in the Full Court order to the contrary, can the time provision in order 7 of the Full Court orders be triggered by the mother giving the father notice as opposed to the State Central Authority?

   c)Did the mother on the 6^th November 2007 give the father the notice required to trigger the commencement of the 21 day period stipulated in order 7 of the Full Court?

   d)Assuming the Central Authority is correct and that notice was not provided to the father for the purpose of the commencement of the 21 day period under order 7 of the Full Court orders until 7.46 a.m. on the 15^th November 2007 Sydney time, was the payment of the money by the father to the Alliance Leicester Commercial Bank (for credit to the mother’s account in NAB Australia) on the 6^th December 2007 sufficient to comply with the order 7 made by the Court against the father? It being noted that the money was not received into the mother’s account until 10^th December 2007.

6. The issues need to be considered in the light of the Full Court decision to order the return of the child expeditiously to the UK.

Background Facts

1. This is a proceeding which deals with orders made under the Family Law (Child Abduction Convention) Regulations. The State Central Authority was represented by its delegate the Director-General of the Department of Community Services. Where I have referred to the State Central Authority in these reasons I necessarily include the Director-General of the Department of Community Services.

2. On the 11^th September 2007, in Melbourne, the Full Court made orders in this matter which required the State Central Authority and the father of the child to cause the return of the child to Scotland (the other orders made by the Full Court refer to the United Kingdom). The authority of the Full Court to make an order against a person who is not a party to the proceedings (in this case the father) is not clear; however, the application before the Court does not require me to make any order for enforcement of the Full Court order.

3. The orders of the Full Court were as follows:-

   1.The appeal be allowed.

   2.The order made by the Honourable Justice Le Poer Trench on 18 May 2007 be set aside

   3.The State Central Authority and the father of the child make such arrangements as are necessary for the child L to return to Scotland in the company of her mother by 30 November 2007 or other date agreed upon between the mother and the State Central Authority.

   4.That the Registrar of the Family Court of Australia hand over the passports of the mother and child to the legal representatives of the mother upon the presentation of these orders to facilitate their return to Scotland in accordance with order 3.

   5.That the mother forthwith sign all documents and do all things necessary to apply to the appropriate United Kingdom authorities for a visa that will enable her to accompany the child L to the United Kingdom and remain in the United Kingdom for a period of not less than six months to enable the resolution of proceedings in the United Kingdom concerning parenting orders appropriate for the child.

   6.That the mother notify the State Central Authority as to the outcome of her visa application as soon as it is known.

   7.That upon the father being notified that the mother has obtained an appropriate visa to enter the United Kingdom the father within 21 days thereafter:

   a)   book and pay for airline tickets for the mother and [the child] to return to Scotland and provide a copy of the travel itinerary to the State Central Authority for forwarding to the mother;  

   b)   deposit into an account nominated by the mother prior to her return AU$5,000 to be used by the mother in the support of herself and the child upon her return to Scotland. 

   8.In the event that the mother:

   a)   complies with her obligations under these orders to forthwith apply for a visa and in the event that the visa is refused; or

   b)   in the event that the father fails to provide the return airline tickets; or

   c)    in the event that the father fails to provide the sum required by way of support for the mother and the child by the due date

   then the return order shall lapse and the application for return of the child shall be discharged. 

4. Following the order being made the mother requested the Central Authority to agree to an extension of time for the return to Scotland of the child to enable her to complete her school year.  On the 26th September 2007 the Central Authority wrote to the mother’s solicitor advising that the father was agreeable to an extension of time, however requested the child be returned on the 15^th January 2008 rather than an earlier date in December 2007 because of the cost of air fares.

5. On the 27^th September 2007 the mother’s solicitors wrote to the Central Authority delegate advising that the mother agreed to the return date as the 15^th January 2008 and had already made her application for a visa to enable that return.

6. On or about the 6^th November 2007 the mother received a visa which allowed her to enter the United Kingdom on the 15^th January 2008 and remain there until 15^th July 2008.

7. On the same day that the mother received her visa she says in her affidavit she spoke to the father on the telephone. She said that there was a conversation as follows:-

   Mother: “I am ringing to tell you that I have been granted a six (6) month visitor’s visa to return to the UK so we can settle all, the custody issues for [the child L]. The visa starts on 15^th January 2008. I received the paperwork today.” 

8. The father has provided a reply to that particular portion of the mother’s affidavit. He has in fact replied to the totality of her affidavit. The relevant portion of the reply is as follows:-

   “Not true, I restate herein what was said. All that the mother mentioned was that she had been granted the visa.”

9. Issues arise as a consequence of those two portions of the evidence:

   a)Does the notice required to be given to the father under order 7 of the orders of the Full Court, have to be given by the State Central Authority or can the notice be provided by the mother?

   b)Which version of the conversation should be accepted by the Court as accurate?

   c)Assuming that the father’s version of fact is accepted, was that sufficient notice for the purpose of triggering the time provision in order 7 of the Full Court orders?

10. During November 2007 the State Central Authority corresponded with the mother’s solicitors seeking precise details of her visa. On the 14^th November 2007 the mother’s solicitors provided all of the details. At 7:46 AM on the 15^th November 2007 Ms P, on behalf of the State Central Authority, emailed to the father information about the mother’s visa. It is submitted by the State Central Authority that the email as sent to the father on the 15^th November 2007 constituted the notice required by order 7 of the Full Courts orders and thereby triggered the time provisions in order 7.

11. Exhibit CA(3) shows that because of the time difference between the countries the father received the email at 8:45 PM on the 14^th November 2007. He acknowledged the receipt of the email by a return email sent from the UK at 8:17 AM on the 15^th November 2007 UK time.

12. If the calculation of the 21 day period commences so as to include the 15^th November 2007 as “day 1” then the 21 day period expired on the 5^th December 2007. If the 16^th November 2007 is calculated as “day 1” for the purpose of the count (as contended for by the State Central Authority) the last day for compliance was the 6^th December 2007.

13. A  number of issues arise from those facts:

    a)When should the father be taken to have received the advice from the State Central Authority?

    b)When does the time commence to run for the calculation of the 21 day period?

14. The father deposited to the mother’s account the sum of $5030 on the 6^th December 2007. On that day he caused the Alliance Leicester Commercial Bank to transfer those funds to the mother’s bank account in Australia. The mother’s bank statement shows that the funds were not received into her account until the 10^th December 2007.

15. The following issue arises.

    a)Has order 7 made by the Full Court been satisfied if the mother does not receive into her bank account the $5,000 within the 21 day period? It is noted that the order requires the AU$5,000 to be deposited “into an account” nominated by the mother.

    b)If it can be seen that the delay in providing the money into the mother’s account was contributed to by the mother not supplying sufficient or proper details of the account into which the sum should be deposited should the mother be estopped from being able to rely upon the failure of the father to pay within the stipulated time?

16. Upon the receipt of the $5,000 into the mother’s account she has spent a small portion of the money before replacing it with deposited funds of her own. The mother says that she has deposited with her solicitor in excess of $10,000 partly to provide funds for the return of the father’s money if the mother does not have to return to the UK.

17. An issue arises from this action:

    a)Can the mother argue that the father is out of time with the payment of his funds if she has in fact used some of those funds for her own purposes?

The Issues

What, if anything, flows from the fact that the Full Court has made a final order against a non party to the proceedings without specific consent to such order being made?

1. Neither of the counsel appearing for the parties were able to direct me to any special provision of the Regulations, Rules or the Family Law Act which would authorise the Full Court to make a final order against a non party such as the orders made in this case without specific consent to such order being made. At the very least I would imagine that if the Full Court was to make an order against the father under the Regulations it would have to give the father an opportunity to be heard or alternatively, have clear evidence that the father was prepared to consent to such an order being made. It seems clear that the State Central Authority does not appear for the father in this case. In my experience the State Central Authority does not enter an appearance for the parent left in the convention country from which the request to the State Central Authority for action to be taken under the Hague Convention has been made.

2. The only reference in the Full Court judgement to the father’s evidence in relation to the provision of financial assistance to the mother is contained at paragraph 46 of the judgement. There is no mention of any offer on the father’s part to fund air fares for the mother and the child nor is there any evidence to suggest the father consented to an order being made against him to fund the airfares and to pay the sum of $5,000.

3. I do accept that the Full Court would not make orders which are outside its jurisdiction and I therefore assume there must have been consent of the father to make such orders (not referred to in the Full Court judgement) or alternatively, there must be some special jurisdiction which has been invoked by the Full Court to enable the order against the father to be made.

4. Again, in my experience, the types of provisions which appear in order 7 of the Full Court orders are usually framed as conditions for the return of the child rather than as an order made against the parent in the convention country (in this case the UK).

5. As I am not required to enforce any of the orders of the Full Court I do not need to deal further with this issue.  

When does the time commence to run for the calculation of the 21 day period?

1. I was referred to a number of authorities by the counsel for the State Central Authority. In the High Court decision of Forster v Jododex Australia Pty Limited (1972) 127 CLR 421 the following words of Gibbs J are helpful:

   “The exploration license was granted "for the term of twelve months from the date hereof", that is, from 28th November 1968. The question is whether the term commenced at the beginning, or at the end, of that day. Where a written instrument requires a period of time to be computed "from" a specified date, it depends on the true construction of the instrument whether the date specified is to be included in the period. Generally speaking, however, the day from which the period runs is excluded, although there is no rigid rule to that effect, and "from" is capable of having an inclusive effect in an appropriate context. These propositions seem to me established by the authorities : see in Australia, Associated Beauty Aids Pty. Ltd. v. Federal Commissioner of Taxation [1965] HCA 20; (1965) 113 CLR 662, at pp 668 and 671 , and in England, South Staffordshire Tramways Co. v. Sickness and Accident Assurance Association (1891) 1 QB 402, at p 405; Goldsmiths' Co. v. West Metropolitan Railway Co. (1904) 1 KB 1, at pp 4, 5 ; Stewart v. Chapman (1951) 2 KB 792, at pp 797-799 ; Cartwright v. MacCormack (1963) 1 WLR 18, at pp 22-23 ; and Trow v. Ind Coope (West Midlands) Ltd. (1967) 2 QB 899, at pp 916-917, 921-922, 923 . In particular, where the term of a lease is expressed to commence "from" a specified day, the term will, prima facie, commence at midnight on the day specified, and will last during the whole anniversary of the day from which it began, unless a different intention is revealed in the document : Ackland v. Lutley (1839) 9 Ad & E 879 (112 ER 1446) ; Kemp v. Palmer (1889) 20 NSWR (Eq) 1; Meggeson v Groves (1917) 1 Ch 158, at p 164; Ladyman v Wirral Estates Ltd (1968) 2 All ER 197, at p 200; cf Sidebotham v Holland (1895) 1 QB 378; Ex parte Le Tonge (1911) 11 SR (NSW) 96; and W H Brakespear & Sons Ltd. v. Barton(1924) 2 KB 88, at pp 94-96 (at p441)

   16. There is nothing in the nature of an exploration license that would render inappropriate this prima facie rule of construction….”

2. Whether the general application of a guideline, in relation to the calculation of when time is to be deemed to commence running, is to apply to a particular case, must depend upon the particular facts of that case. There is no hard and fast rule of law which says the day upon which the event occurs commencing the clock ticking for the purpose of calculating the time allowed, cannot be included in the count.

3. In this case the clear intention of the order must have been to provide the father with sufficient clear commercial business operating days in order to arrange for the $5,000 to be deposited to the mother’s bank account.  It is in the circumstances reasonable to accept that the commercial trading hours of banks in the UK is unlikely to be much greater than from 9.00 a.m. to 5.00 p.m. on working days. When the father acknowledged receipt of the email from the State Central Authority at 8.45 a.m. on the 15^th November 2007 it must be reasonably be predicted that the banks, businesses or persons who the father might reasonably be expected to have to deal with in order to comply with the order of the Full Court would not yet have opened for business. The father would have had the whole of the business day to commence fulfilling his obligations. One can reasonably ask what realistic difference might have been achieved by the father had he acknowledged notification of the advice from the State Central Authority at 8.45 p.m. on the evening of 14^th November 2007 as opposed to 8.45 a.m. on the morning of 15^th November 2007. The answer must reasonably be none.

4. It seems to me that this is a case where the rule which is frequently applied to the issue of counting time as referred to above might reasonably be departed from in this case based upon the particular facts of this case.

5. However, it is a bold position for a trial judge to take to make a finding contrary to a long legal convention and it seems to me that in any event the father should be provided with every opportunity to comply with an order which has been made for the return of a child to a convention country under the Regulations considered in Hague Convention cases.

6. I would therefore conclude that the general rule should apply to this case and the first day for the calculation of the running of the 21 day period should be the 16^th November 2007 if notice of the mother’s obtaining of her visa is found to be the 15^th November 2007 as asserted by the State Central Authority.

As there is no stipulation in the Full Court order to the contrary, can the time provision in order 7 of the Full Court orders be triggered by the mother giving the father notice as opposed to the State Central Authority?

1. The State Central Authority argues that the logical progression of the orders of the Full Court would lead to the conclusion that it anticipated that the father would be notified by the State Central Authority of the date upon which the mother received the “appropriate visa”. In the usual type of case that this Court is required to hear under the Regulation there is no level of communication between the mother and father of the subject children and thus it is usual to anticipate that the notice would as a matter of necessity be provided through the State Central Authority.

2. The orders of the Full Court are not specific in stating who is to provide the notice required to trigger the time clause in order 7. On the face of the orders there is nothing to prevent the mother from providing the notice to the father directly. From the mother’s perspective, though, if she was proposing to provide the notice she should have provided it in writing or by email so there could not be any argument as to the text of the notice so provided. 

3. I therefore determine that on the face of the orders made by the Full Court there was nothing which prevented the mother giving the father notice sufficient to trigger the start of the 21 day period running under order 7 of the Full Court orders.

Did the mother on the 6^th November 2007 give the father the notice required to trigger the commencement of the 21 day period stipulated in order 7 of the Full Court? Which version of the conversation between the mother and the father about the receipt of “the visa” should be accepted by the Court as accurate?

1. The mother’s version of what she said to the father to provide notice under order 7 of the Full Court orders has been set out by me earlier in these reasons. If that was said, it seems that all the ingredients required to provide notice that the mother had “obtained an appropriate visa to enter the United Kingdom” were present.

2. The father’s version of what was said has also been set out by me earlier in these reasons.

3. The State Central Authority says that the mother’s version of the facts should not be accepted. It says that there is other evidence which does not support the mother’s version of facts.

4. It is common ground that the mother did apply for and did receive a visa which enabled the mother to enter the UK on the 15^th January 2008 and remain for six (6) months.

5. In support of its’ argument the State Central Authority points to pages 71 and 72 of the bundle provided by it to me for the hearing. In paragraph 26 of her affidavit, as it appears on page 71 of the bundle, the mother said she calculated that the time for payment of the $5,000 elapsed on the 27^th November 2007. On that day she sent him an email and also a text message to his mobile phone saying “When do you intend to deposit the money into my account?” The mother says the father did not respond.  In repose to paragraphs 26 and 27 of the mother’s affidavit the father says “26) No comments. 27) I agree.” The State Central Authority says that if the mother really did believe the time elapsed on the 27^th November 2007 she would have said “Time’s up. You have not paid the money. I do not have to return.”  I do not accept that submission. Given the time differences between Australia and the UK the father may well have had time to pay the money still on the 27^th November 2007 UK time. Further, he may well have paid the money; however, because of bank delay it may not have reached the mother’s account.

6. It is submitted by the State Central Authority that nowhere after the 6^th November 2007 does the mother’s solicitor assert that notice had already been provided by the mother directly to the father. This submission however, is not accurate.

7. Page 90 of the bundle is a copy of email between the mother’s solicitor and Mr N, the mother’s partner. The words used by the mother’s solicitor clearly indicate he understood the 21 day period was running and that the father now had the obligation to pay the $5,000 into the mother’s bank account.

8. Page 102 of the bundle sets out a copy of an email from the mother to the father dated 8^th November 2007. It attached details of the flights she wanted the father to book. There is no issue that these were the flights for the 15^th January 2008.

9. On page 99 of the bundle is an email from the mother to the father dated 10^th November 2007 which contain specific reference to flights from Sydney to Edinburgh for a departure on the 15^th January 2008 and return the 16^th July 2008.

10. On page 26 of the bundle there is a copy of an email from Ms P to the father. It was sent on the 5^th December 2007. In that email the following words appear: “The mother’s lawyers sent me a letter yesterday to say you have not done so (paid the $5,000) and that the 21 days have elapsed. And that as you have not paid the money in the return order is discharged.”  This email makes it clear that the mother’s solicitors were of the opinion that the notice for the purpose of order 7 had been given at a date earlier than the 15^th November 2007.

11. There is no dispute that the father paid for the airline tickets for the mother and the child to travel to the UK on the 25^th November 2007. This was within the 21 day period from the 6^th November 2007.

12. It is submitted by the State Central Authority that it was important for the State Central Authority to have precise details of the start date of the mother’s visa. It says that there could not be agreement for the mother and the child to travel to the UK on the 15^th January 2008 if the mother’s six month visa was to commence at an earlier date. The reason being that it is submitted the mother was entitled to refuse to go to the UK under the orders of the Full Court unless she could stay there for a continuous period of six months. Although I do not agree with the interpretation placed on the order by the State Central Authority I can understand the confusion created by the imprecise wording of the Full Court order. I acknowledge that the State Central Authority was concerned by the following words in order 5 of the Full Court orders: “that will enable her to accompany the child [L] to the United Kingdom and remain in the United Kingdom for a period of not less than six months” [emphasis added].I do not accept that the word “enable” as used in the order means the mother must be in the UK on the commencement date of her visa so that she could stay in the UK for the full period of six months. I do accept however, that the wording could legitimately raise a concern, as it did here, with the State Central Authority.

13. The date when the State Central Authority received notice that the mother had obtained an appropriate visa is on one level irrelevant to the question of when the 21 day period for compliance with order 7 commences to run as it is the notice to the father under order 7 and not the State Central Authority which triggers the time running.

14. The mother submits that there should be no debate about this matter. She says it is patently obvious that if she did not obtain the visa which required her to travel to the UK and remain there for a period of six months then she would have simply advised that the visa had been refused and thereafter the order for return would lapse. The mother says even on the father’s version the words which he says were used, namely, “She had been granted the visa” were sufficient to provide the notice as required by order 7. The mother says the use of the words “the visa” could only have one clear meaning, namely, that the visa she was required to apply for had been granted. That visa in the context of this case following the further agreement about the return date being 15^th January 2008,  could only have been a visa which entitled the mother to enter the UK on the 15^th January 2008 and to remain for a period of six months.

15. The mother draws my attention to the letter annexed to the affidavit of Ms P at page 21 of the bundle. In that letter dated 7^th November 2007 the State Central Authority writes to the mother’s solicitor and says: “I understand from the child’s father who telephoned my offices today that your client has received her visa. Can you please let me know if this is correct as a matter of urgency?”  The letter also called for details of the mother’s bank account so the father was able to pay the $5,000 as required by the Full Court order.  That letter was replied to by email from the mother’s solicitor. The response appears at page 18 and also page 94 of the bundle. It was dated 9^th November 2007 and provided details of the mother’s bank account. It also speaks to the airline ticket issue. It does not specifically confirm the mother had received her visa.

16. In answer to the criticism that the mother’s solicitor did not specifically confirm the mother had obtained her visa in the email to Ms P of the 9^th November 2007 the mother’s counsel said it was unnecessary for the solicitor to do so as unless the mother had received the visa there would be no reason to talk about airline bookings or the payment of the $5,000. The first condition precedent for the requirement of the mother and child to return to the UK was that the mother obtained the type of visa specified by the Full Court in order 5 of the Full Court orders.

17. The evidence shows that the State Central Authority pursued the mother’s solicitor to obtain details of when the mother’s visa was to commence. The mother submits this was not necessary as the mother was accepting that she did have an appropriate visa as directed by the Full Court orders. It was submitted that the State Central Authority did not have to go further to satisfy itself that she had the visa.

18. It was submitted by the mother that the letter from the State Central Authority to the mother’s solicitor dated 7^th November 2007 did not seek precise details of the mother’s visa. It sought only confirmation that she had obtained “the visa”. It is submitted that was all that was required by the order 6.

19. Order 6 of the Full Court orders only required that the mother notify the State Central Authority of the outcome of her visa application. A simple “I have the visa” was sufficient as anything less than the visa as required by order 5 would have provoked the immediate reply “I was refused the visa”.

20. Given the detail alleged to have been provided by the mother to the father in her conversation on the 6^th November 2007 I find that if I accept her evidence in relation to the conversation then the detail she gave was sufficient notice to commence the clock running on the count down of 21 days for the father to then comply with the provisions of order 7.

21. I also find that if the father’s version of the conversation is accepted then the mother gave sufficient notice for the purpose of order 7 of the Full Court orders. In the circumstances the use of the term “the visa” could only have meant that she had a visa which complied with order 5 of the Full Court orders. The parties had agreed that the travel would be occurring on the 15^th January 2008 and the requirement of order 5 must have meant that the mother was to be able to stay in the UK for a minimum of six months. Anything less than that would have entitled the mother to say “I have been refused the visa which the Full Court said I was to have.”

22. There is no issue that the mother did have on the 6^th November 2007 a visa which enabled her to travel to the UK on the 15^th January 2008 and remain there for a period of six months.

23. I conclude therefore that on either version of the facts the mother gave the father the requisite notice for the purpose of order 7 of the Full Court orders on the 6^th November 2007.

24. If I be wrong in my determination that even on the father’s evidence the mother provided him with adequate notice for the purpose of order 7 of the Full Court orders on the 6^th November 2007 then I need to make a finding on the evidence of the parties as to the conflicting versions of fact provided on this point.

25. I do not accept the submission of the State Central Authority that the statement of the mother, as contained in paragraph 15 of her affidavit of the 20^th December 2007, “beggars belief”. I also do not accept that the words and actions of the mother after the 6^th November 2007 were not consistent with her belief that the time was running for the purpose of order 7 from the 6^th November 2007.

26. The mother has in her affidavit set out precise detail of conversations between her and the father. The father has not done this. Further, despite indicating that he would provide precise details of his conversation with the mother on this point when he said in his sworn statement, as it appears in the first paragraph on page 121 of the bundle, “I restate herein what was said” he did not in fact do so in any way which was apparent to me or which could be indicated by the counsel for the State Central Authority.

27. I find there is nothing inherently unbelievable in the affidavit of the mother nor is there inconsistency which I find would caution me against accepting her version of the facts.

28. I accept that given the circumstances of this case each of the mother and the father could be motivated to fabricate evidence on this point.

29. On balance of probabilities I find the evidence of the mother on the conversation between the mother and father on the 6^th November 2007 to be the most acceptable.

Assuming that the father’s version of fact is accepted, was that sufficient notice for the purpose of triggering the time provision in order 7 of the Full Court  orders?

1. The answer to this question is yes, as determined by me above.

When should the father be taken to have received the advice from the State Central Authority?

1. If I be wrong in my determination relating to the notice having been adequately provided by the mother to the father on the 6^th November 2007 then I need to consider this issue.

2. The submission of the State Central Authority is that the father should only be found to have received the relevant notification which triggered the counting for the 21 day period referred to in order 7 of the Full Court orders when he clearly acknowledged the receipt of the order. In this case that would be at 8.45.a.m. on the 15^th November 2007 UK time. The mother submits the time runs from the moment the State Central Authority sent the email of advice to the father, namely 8.45 p.m. on the 14^th November 2007.

3. As set out earlier Exhibit CA(3) shows that because of the time difference between the countries the father received the email at 8:45 PM on the 14^th November 2007. He acknowledged the receipt of the e-mail by a return e-mail sent from the UK at 8:17 AM on the 15^th November 2007 UK time.

4. If the calculation of the 21 day period commences so as to include the 15^th November 2007 as “day 1” then the 21 day period expired on the 5^th December 2007. If the 16^th November 2007 is calculated as “day 1” for the purpose of the count (as contended for by the State Central Authority) the last day for compliance was the 6^th December 2007.

5. It is a basic tenant of an enforcement proceeding that a person can only be in breach of an order which it is established they had knowledge of. Although I have raised some concern about the power of the Full Court to make any order against the father, it is nonetheless an order of the Court which is being considered in this case. It seems to me therefore that the time should only commence to run from the time the father clearly can be seen to have notice of the order. I therefore find that the father received the notice required under order 7 at 8.45 am on the 15^th November 2007 UK time.

Assuming the Central Authority is correct and that notice was not provided to the father for the purpose of the commencement of the 21 day period under order 7 of the Full Court orders until 7.46 a.m. on the 15^th November 2007 Sydney time, was the payment of the money by the father to the Alliance Leicester Commercial Bank (for credit to the mother’s account in NAB Australia) sufficient to comply with the order 7 made by the Court against the father, it being noted that the money was not received into the mother’s account until 10^th December 2007?

1. As I have determined earlier the time for commencement of the 21 day period should exclude the day upon which the notice was given.

If it can be seen that the delay in providing the money into the mother’s account was contributed to by the mother not supplying sufficient or proper details of the account into which the sum should be deposited, should the mother be estopped from being able to rely upon the failure of the father to pay within the stipulated time?

1. In the sworn statement of the father being annexure “B” to the affidavit of Ms P sworn 7^th January 2008 the father in his annexed sworn statement from paragraph 36 sets out his account of what had happened in relation to his payment of the money to the mother’s bank account. It seems he first attempted to deposit money to the mother’s account by direct transfer from his own bank account on the 30^th November 2007. He was unsuccessful. He tried to effect the transfer on the 3^rd December 2007 without success due to the lack of a BIC number. The father then sets out his actions in seeking to deposit the funds to the mother’s account up to the 6^th December 2007, the day he actually achieved being able to have his bank send the money to the mother’s account in Australia.

2. It seems to me that the mother did contribute to the inability of the father to comply with order 7 in that she did not provide the precise details of the name of her bank to enable the father’s bankers to effect the transfer of funds to the mother’s account in Australia. This was not deliberate but rather was an inadvertent oversight. The oversight was compounded by the mother’s solicitor referring to the mother’s bank as the NAB and no doubt the State Central Authority continued that oversight in providing the details to the father. For residents of Australia most would be familiar with the abbreviation of the name of the National Bank of Australia to the NAB. The father obviously did not know the abbreviation nor does it seem that the officer he dealt with at his bank was aware of the full name of the bank. I would therefore conclude that the mother should be estopped from being able to assert that the order 7 has not been complied with by the father due to the payment being made by the father on the 6^th December 2007.

3. This conclusion would not assist the father in this case as he did not attempt to deposit money to the mother’s account until the 30^th November 2007. By that time the 21 day period which commenced on the 6^th November 2007 had expired.

Has order 7 made by the Full Court been satisfied if the mother does not receive into her bank account the $5,000 within the 21 day period? It is noted that the order requires the AU$5,000 to be deposited “into an account” nominated by the mother.

1. The evidence establishes that the mother did not receive into her bank account the father’s payment of $5,000 until the 10^th December 2007. Does that mean that the father has failed to comply with the order?

2. The evidence establishes that the UK bank took 4 days to effect the deposit of the funds into the mother’s bank account in Australia. Even if the father had been able to deposit the funds through his bank on the 3^rd December 2007 the funds would not have reached the mother’s bank account until the 7^th December which would have been one day late even on the findings urged by the State Central Authority.

3. At page 25 of the bundle there is a copy of an email from the father to Ms P. In that email he acknowledges “I was also told it would take 3 to 4 days to go through as they use an intermediate bank.”  Thus it can be seen that at least at the point of depositing the money with the Alliance Leicester Commercial Bank the father know the transfer to the mother’s account was not instant.

4. Does the father comply with the order the moment his funds leave his control destined for the mother’s control? It must be the case that in the absence of some ability to cancel the transaction at any time prior to the funds actually being deposited into the mother’s account (about which there is no evidence to suggest such a mechanism existed for the father) the funds must be seen to beneficially belong to the mother although they be in transit and unavailable for her use.

1. The contrary argument is that the order 7(b) requires the father to “deposit into an account”. This suggests that the funds needed to be in the mother’s nominated account within the specified time. By way of further confusion however, the order goes on to say “to be used by the mother in support of herself and the child upon her return to Scotland”. Clearly the intention of the order is that the funds only have to be available to the mother prior to her departure from Australia, in this case the date agreed of 15^th January 2008.

2. In the circumstances I think it is reasonable to find that the father had complied with order 7 in terms of depositing money to the mother’s bank account the moment the money ceased to be his and therefore in his control. I have been directed to no authority or statement of law which asserts to the contrary.

Can the mother argue that the father is out of time with the payment of his funds if she has in fact used some of those funds for her own purposes?

1. I have referred to the fact that the mother has drawn on part of the fund provided by the father earlier in these reasons. The evidence establishes that the mother received into her account on the 10^th December 2007 the sum of $5,022. Between that day and the 12^th December 2007 the mother drew against her account so as to reduce the balance of the account to $4,185.34. Then on the 12^th December 2007 the mother deposited the sum of $1,795.07 to increase the credit balance in her account to $5,980.41. She thereafter withdrew sums of money so that the balance of the account was $4,359.41 as at the 18^th December 2007.

2. In the absence of other evidence I am asked to assume that the monies in the account of the mother as evidenced in the statement set out at page 110 and 111 of the bundle was the only money available to the mother at that time. I would not make that assumption.

3. I know that the mother was living with her husband. I am not sure of his financial status however there is at least the possibility that he contributed towards the support of the mother. I know that by the 10^th January 2007 the mother had deposited the sum of $10,916.85 to her credit with her solicitors.

4. I could not conclude on the evidence before me that the mother would have less than $5,022 to take with her to the UK to assist with the support of herself and the child upon arriving in that country.

5. I would therefore not conclude that the mother should be estopped from denying the father has complied with order 7 of the Full Court orders because she has dealt with funds provided by the father as set out in the evidence referred to herein.

Conclusion

1. As a consequence of my findings set out herein there must be a declaration that the father has failed to fulfil the order made against him and therefore the order for the return of the child to Scotland lapses.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench

Associate: 

Date:  14 January 2008