Director-General, Department of Community Services & Frampton
[2008] FamCAFC 35
•3 April 2008
FAMILY COURT OF AUSTRALIA
| DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES & FRAMPTON | [2008] FamCAFC 35 |
| FAMILY LAW - APPEAL – HAGUE CONVENTION – Where the trial Judge had made declarations that the father (on whose behalf the Central Authority had obtained on appeal to the Full Court an order for the return of the child to Scotland) had failed to comply within the required time with an order of the Full Court that he pay for airline tickets for the mother and child to return to Scotland and deposit money into the mother’s bank account within 21 days of being notified that the mother had obtained a UK entry visa, and that as a consequence of this failure the Full Court’s orders for the return of the child had lapsed and the Central Authority’s application for the return of the child was discharged – Where the trial Judge had found that the 21 day period had commenced running on the day after the mother informed the father that she had obtained a visa – Whether the trial Judge erred in concluding that as a matter of construction the Full Court’s orders allowed the mother (rather than the Central Authority) to notify the father that she had obtained the appropriate visa – Appeal allowed – Declaration made that the father had complied with the Full Court orders – Directions made for submissions in relation to the orders now required to provide for the return of the mother and the child. |
| Family Law (Child Abduction Convention) Regulations 1986 |
Yunghanns v Yunghanns (1999) 24 FamLR 400; (1999) FLC 92-836
| APPELLANT: | Director-General, Department of Community Services (NSW) |
| RESPONDENT: | Ms Frampton |
| FILE NUMBER: | SYC | 1445 | of | 2007 |
| APPEAL NUMBER: | EA | 13 | of | 2008 |
| DATE DELIVERED: | 3 April 2008 |
| PLACE DELIVERED: | Canberra |
| JUDGMENT OF: | Bryant CJ, Finn and May JJ |
| HEARING DATE: | 6 February 2008 |
LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 14 January 2008 |
| LOWER COURT MNC: | [2008] FamCA 163 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Christie |
| SOLICITOR FOR THE APPELLANT: | International Kidnapping Services, NSW Department of Community Services |
| COUNSEL FOR THE RESPONDENT: | Ms Hartstein |
| SOLICITOR FOR THE RESPONDENT: | Slade Manwaring |
Orders
That the appeal be allowed.
That the orders and declarations made by the Honourable Justice Le Poer Trench on 14 January 2008 be set aside and in their place it be ordered and declared that Order 7 of the orders of the Full Court made on 11 September 2007 has been complied with by the father.
That within 14 days of the date of these orders the State Central Authority and the mother either file an agreed draft of the further orders of a machinery nature which are necessary to give effect to Order 3 of the orders of the Full Court of 11 September 2007, or in default of agreement each party shall file and serve on the other party separate drafts of such further orders together with brief written submissions in support of that party’s separate draft.
That the State Central Authority and the mother are at liberty within 14 days of the date of these orders to file and serve submissions in relation to the costs of the appeal with each party having a further 14 days to file and serve any response to any such submissions.
IT IS NOTED that publication of this judgment under the pseudonym Director-General, Department of Community Services and Frampton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 13 of 2008
File Number: SYC 1445 of 2007
| Director-General, Department of Community Services |
Appellant
And
| Ms Frampton |
Respondent
REASONS FOR JUDGMENT
This is an appeal by the Director-General, Department of Community Services (NSW) acting as the State Central Authority for New South Wales (“the Central Authority”) under the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”) against orders made by Le Poer Trench J on 14 January 2008.
By those orders his Honour declared that the father of a child on whose behalf the Central Authority had applied for, and ultimately obtained, an order under the Regulations for the return to Scotland of the child, had failed to comply with an order (Order 7) made by the Full Court on 11 September 2007, and that as a consequence of this failure on the part of the father, the orders for the return of the child had lapsed and the Central Authority’s application for the return of the child should be discharged.
Background
The somewhat unusual background to his Honour’s orders and to this appeal is as follows.
The Central Authority’s application for an order for the return of the child to Scotland was heard by Le Poer Trench J on 27 April 2007. The respondent to that application was the child’s mother. On 18 May 2007 his Honour made an order dismissing the application.
The Central Authority then appealed his Honour’s order dismissing its application.
On 11 September 2007 the Full Court made orders allowing the appeal, setting aside his Honour’s order, and granting the application for the return of the child to Scotland, but subject to compliance by the Central Authority and the father with certain other orders also made that day by the Full Court.
Because of the significance in this appeal of the terms of the Full Court’s orders, it is necessary to set out those orders in full:
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 … 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 (Sydney Registry) 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 … 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.
Following the making of the Full Court orders, discussions commenced between the Central Authority, the mother’s solicitor, the mother and the father regarding the possibility of delaying the date for the return of the child until 15 January 2008 (to enable the child to complete the Australian school year and to avoid the peak air-fares at Christmas time).
In a telephone conversation on 6 November 2007 the mother informed the father that she had obtained a visa. There is some dispute regarding the exact words used by the mother when informing the father that she had a visa.
On 7 November 2007 the Central Authority officer responsible for the case wrote to the mother’s solicitor saying:
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 Full Court order requires the father to pay into your clients account the sum of AU$5,000. Can I please have your client’s accounts number for him to meet that condition?
The father is now also in a position to pay for the flight tickets. Please let me know if it is preferable for the parents to agree the dates.
I look forward to hearing from you.
On 9 November the mother’s solicitors sent an email to the Central Authority which only provided details of the mother’s bank account and stated that instructions were being obtained regarding flights.
Some email correspondence then ensued between the father and the mother concerning the flight arrangements.
On 13 November 2007 the Central Authority officer sent an email to the mother’s solicitor “asking once again for details of the visa or at least a reassurance that the visa will run for 6 months from mid January 2008”.
On the same day (13 November 2007) the mother’s solicitor replied by email saying “… as far as I know, she has the 6 month visa. I think we have told you that already”.
Still on 13 November, the Central Authority officer replied by email “No you have not told me anything about the mother’s visa – I still need to know when her visa starts running…”.
Following an email query on 14 November 2007 from the mother’s solicitor as to what the Central Authority officer wanted him to do, the officer responded that she needed to know “when the visa runs from”.
Later that day (14 November 2007) a scanned copy of the visa was emailed to the Central Authority by the mother’s solicitor – although further email correspondence occurred that day between the Central Authority officer and the mother’s solicitor to clarify the date of commencement of the visa, being 15 January 2008.
On morning of 15 November 2007 the Central Authority officer emailed the father in the United Kingdom saying:
I wanted to let you know that I received an e-mail from the mother’s lawyers to say that her visa runs from 15 January 2008 for 6 months. Therefore the tickets being booked for 15 Jan as requested by the mother will be good. …
Can you let me have the travel itinerary when the tickets have been booked?
You should also pay in the sum of AU$5,000. …
Also on that day (15 November 2007) the Central Authority officer emailed the mother’s solicitor saying (inter alia):
… The father can now proceed to book the tickets my understanding is the mother has given him her preferred dates being 15 Jan …
On 25 November 2007 the father paid for airline tickets for the mother and the child to travel to the United Kingdom on 15 January 2008.
It appears that on 30 November 2007 the father first attempted to deposit money into the mother’s bank account by a direct transfer from his own bank account, but was unsuccessful, and that he tried again unsuccessfully on 3 December 2007.
On 4 December 2007 the solicitor for the mother wrote to the Central Authority saying:
I am instructed that the Father was notified of the Visa, on or before 6 November 2007. We also received correspondence from you on 7 November 2007 in this regard.
A period of 21 days has elapsed from that date.
I am instructed that the Father has failed to comply with Order 7(b).
In those circumstances, and pursuant to Order 8(c), the return Order has now lapsed. The Application for the return of the child to the United Kingdom is therefore discharged.
We have earlier set out the correspondence from the Central Authority dated 7 November 2007 to which the mother’s solicitor referred in his letter of 4 December 2007.
On 6 December 2007 the father arranged for a UK bank to transfer the sum of $5030 into the mother’s bank account in Australia. The funds were not received in that account until 10 December 2007.
On 13 December 2007 the Central Authority filed an application (presumably pursuant to Regulation 14(1)(a)(vi) and/ or Regulation 14A) which named the mother as the respondent and which sought the following orders:
1.An order that paragraph 7(b) of the order dated 11 September 2007 have [sic] been complied with by the father.
2.Any other order to give effect to paragraph 3 of the order dated 11 September 2007.
That application was heard by Le Poer Trench J on 10 and 11 January 2008.
It was the Central Authority’s case before his Honour that having received on 14 November details from the mother’s solicitor concerning her visa, the Central Authority had emailed the father on 15 November 2007 with the details of the visa and that this constituted the notice required by Order 7 of the Full Court’s orders; and that the 21 day period commenced on the following day, being 16 November 2007, and concluded on 6 December 2007, which was the day on which the father arranged for the deposit of approximately $5000 into the mother’s account.
As foreshadowed in her solicitor’s letter of 4 December 2007, the mother’s case before her Honour was that notice was given by the mother to the father of the visa in their telephone conversation on 6 November, and thus the 21 day period commenced to run on that date (or the day following).
His Honour delivered his reasons for judgment on 14 January 2008 and made the orders which are the subject of this appeal, being declarations which were in the following terms:
(1)Declaration that the father has failed to comply with order 7 made by the Full Court on the 11th 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 11th September 2007 order 3 of those same orders has lapsed and the application for the return of the child is discharged.
A summary of the findings and conclusions in the judgment of 14 january 2008
Relevantly for present purposes, and in summary, Le Poer Trench J found or concluded in his reasons for judgment delivered on 14 January 2008:
· that on the face of the orders made by the Full Court on 11 September 2007, 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 of 11 September 2007 (in other words, it was not necessary for the Central Authority to give the father the required notice);
· that whether the father’s version or the mother’s version (which was the version which his Honour ultimately preferred) of what was said in their telephone discussion on 6 November 2007 was accepted, for the purpose of Order 7 of the Full Court’s orders of 11 September 2007, the mother gave the father the requisite notice on 6 November 2007;
· that the 21 day period (referred to in Order 7 of the Full Court’s orders of 11 September 2007) should exclude the day upon which the notice was given (and thus on the basis of his Honour’s finding that the mother had given the father the requite notice on 6 November, the 21 day period would have expired on 28 November 2007).
For reasons which we need not elaborate (but which are to be found in paragraphs 74 to 76 of his Honour’s judgment), his Honour concluded (in effect) that the father should be regarded as having deposited the required amount of $5000 into the mother’s account on 30 November 2007. However as his Honour explained (in paragraph 76) this conclusion could not assist the father as by 30 November 2007, the 21 day period which had commenced on 6 November 2007 had expired.
Thus it was that his Honour concluded (in paragraph 88 of his reasons) that the father had failed to fulfil the order made against him and therefore the order for the return of the child to Scotland lapsed.
The grounds of appeal
The first four grounds of appeal contained in the Amended Notice of Appeal relied upon at the hearing of the appeal, asserted that his Honour erred:
(1)in finding that as a matter of construction the orders allowed the mother to be the notifying party for the purpose of order 7; and/or
(2)in finding that it was sufficient for the father to have been notified (by the mother) that she had a visa without any further detail in context where order 5 required her to have a visa which would allow her to remain in the United Kingdom for a period of not less than six months;
(3)in finding that the orders were imprecise yet making a declaration which had the effect of discharging the return order;
(4)in making a credit finding in regards to the conversation between the mother and father on 6 November 2007 without foundation for such finding.
There was a fifth ground of appeal which asserted:
(5)That his Honour’s finding that the mother’s use of the father’s funds does not bear on the question of the father’s compliance with the condition ignores the fact the mother cannot approbate and reprobate under the same orders.
Ground 1: the proper construction of order 7
It will be convenient for the purposes of a discussion of the Central Authority’s first ground of appeal to set out again at this point the terms of Orders 6 and 7 of the Full Court’s orders of 11 September 2007:
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.
In his reasons for judgment Le Poer Trench J posed the following question for himself concerning the meaning of Order 7 – the question which is now at the heart of this appeal:
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?
His Honour then reached the following conclusions in answer to this question:
35.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.
36.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.
37.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.
In support of the assertion in Ground One that his Honour had erred “in finding that as a matter of construction the orders allowed the mother to be the notifying party for the purpose of order 7”, counsel for the Central Authority submitted that an order must be construed in the context or framework of the other orders contained in the suite of orders made on the same date and in the light of the proceedings as a whole. In support of this submission counsel relied on a statement to the same effect by the Full Court in Yunghanns v Yunghanns (1999) 24 FamLR 400; (1999) FLC 92-836 at [142].
The framework established by the Full Court’s orders was then submitted to be that Order 5 required the mother to obtain the visa, Order 6 required her to notify the Central Authority, with Order 7 then providing for the time to run for the father to fulfil his obligations on the basis that he had been notified of the visa by the Central Authority. The orders must be read, according to the Central Authority’s submissions, as requiring it to give notice to the father of the visa and thus commence the 21 day period in which the father was to fulfil his obligations.
In responding to the submissions of counsel for the Central Authority, counsel for the respondent mother did not dispute that the orders established a framework, but she contended that the orders did not have to provide every detail of the framework.
It was also contended on behalf of the respondent mother that the Central Authority should be estopped from relying on what would be a restrictive interpretation of Order 7 because it had permitted the father and the mother to make the necessary arrangements in relation to the return flights for the mother and the child.
At the hearing of the appeal, each party through their counsel endeavoured to support the particular interpretation of Order 7 for which that party contended, by reference to the correspondence between all concerned which had followed the making of the Full Court orders on 11 September 2007, particularly the correspondence between the Central Authority and the mother’s solicitor which followed the telephone conversation between the mother and the father on 6 November 2007. We do not consider that approach to the interpretation of the orders either appropriate or of particular assistance.
Nor do we consider that any assistance in interpreting Order 7 can be gained from the reasons for judgment of the Full Court delivered in relation to the orders of 11 September 2007, and on which counsel for the respondent mother sought to place some reliance before us.
Rather we consider that the proper approach to the interpretation of Order 7 is to consider the orders of 11 September 2008 on their face and in the context of the framework which they establish. On this approach, the correct interpretation of Order 7 is, in our opinion, that it was the Central Authority which was required to give notice to the father that the mother’s visa had been obtained in order that the 21 day period in which the father had to fulfil his obligations could commence.
We consider this to be the correct interpretation of Order 7 because it gives meaning and purpose to the provision in Order 6 requiring the mother to give notice of the visa to the Central Authority. In other words, if it was not intended that the Central Authority should give the required notice to the father, there would seem to be no purpose in the requirement in Order 6 for the mother to give notice of the visa to the Central Authority.
A further argument in support of the interpretation which we consider to be the correct interpretation, is to be found in his Honour’s reasons at paragraph 35 of his judgment (see paragraph 37 above), being that it would be usual to anticipate that all communications between the mother and father would take place through the Central Authority.
Conclusion
We therefore conclude that his Honour erred in his interpretation of Order 7. Thus Ground 1 is established and the appeal must accordingly succeed. Given this conclusion it is unnecessary for us to consider any of the other grounds of appeal.
On the basis of the interpretation of Order 7 which we hold to be the correct interpretation of that order, and on the basis also of other findings made by his Honour which were not challenged before us, it follows:
· that the required notice that the mother had obtained the appropriate visa was given by the Central Authority to the father by email sent to him by the Authority on 15 November 2007;
· that the father then had 21 days from 16 November 2007 to book and pay for airline tickets and to deposit the sum of $5,000 into an account nominated by the mother;
· that as the father paid for the tickets on 25 November 2007 and as he should be regarded, according to his Honour, as having deposited the required amount into the mother’s account on 30 November 2007, he should therefore be held to have complied with Order 7 of the orders of 11 September 2007.
The appropriate orders for us to make are therefore, that the appeal be allowed, that the orders and declarations made by his Honour on 14 January 2008 be set aside and in place of those orders and or declarations, it be declared that Order 7 of the orders of the Full Court of 11 September 2007 has been complied with by the father.
Had his Honour in his orders of 14 January 2008 made the declaration which in our opinion, he ought to have made (being that the father had complied with Order 7 of the orders of 11 September 2007), it may well have been necessary given the proximity of the date of his orders to the anticipated departure date for the mother and the child of 15 January 2008, for him to make further orders of a machinery nature to provide revised arrangements for their return to Scotland (as indeed had been sought by the Central Authority in its application filed on 13 December 2007: see paragraph 25 above).
We were informed at the hearing of the appeal that by that time, the mother had returned to the father the money sent by him to her pursuant to the Full Court orders. Further, we assume that new airline tickets would now need to be purchased, and also that the mother will need to obtain a new visa since the visa originally obtained was for a six month period from 15 January 2008.
We will therefore give the Central Authority and the mother a further 14 days from the delivery of this judgment and the making of our orders foreshadowed in paragraph 49 above, to file with the Appeal Registrar a draft of the revised machinery orders which we should make and which would need to operate subject to the provisions of Order 8 of the orders of 11 September 2007. In the event that the parties are unable to agree upon a draft of such machinery orders, then it will be necessary for them each to submit (within the same 14 day period) separate drafts accompanied by brief written submissions in support of their respective drafts.
At the same time the parties should file and serve any submissions which either may wish to make in relation to the costs of the appeal, with the other party having a further 14 days to respond to any such submissions.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 3 April 2008
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