Fluvium and Carlson

[2011] FamCA 575

FAMILY COURT OF AUSTRALIA

FLUVIUM & CARLSON [2011] FamCA 575

FAMILY LAW – CHILDREN – Child permitted to travel overseas to a Hague Convention country

Family Law Act 1975 (Cth)

APPLICANT: Ms Fluvium

RESPONDENT: Mr Carlson

INDEPENDENT CHILDREN’S LAWYER: Ms Toomey

FILE NUMBER: BRC 9490 of 2008

DATE DELIVERED: 11 July 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 11 July 2011

REPRESENTATION

THE APPLICANT: In person by phone

THE RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Toomey of Schultz Toomey O’Brien Lawyers by phone

Orders

IT IS ORDERED THAT

1. The father shall deliver the child D (male) born … June 2006 (“the child”) to the maternal grandmother at the Child Dispute Services, Brisbane forthwith and by not later than 5.00pm tonight.

2. The child be permitted to leave Australia and in the company of the maternal grandmother (Ms G)at any time after midnight on 11 July 2011 and the child’s name be removed from the Airport Watch list  so as to effect that travel.

   AND IT IS NOTED THAT

   In respect of Order 2 above, that the child intends travelling together with his maternal grandmother on flight …, departing Brisbane for the USA at … on 12 July 2011.

IT IS FURTHER ORDERED THAT

1. The Independent Children’s Lawyer shall arrange for the Family Consultant, Mr O, to speak to the child as foreshadowed by earlier orders of this Court on or before 7.00pm Canadian time on 22 July 2011 (that is 9.00am, Saturday, 23 July 2011, Brisbane time) and shall further facilitate a further written report by Mr O to be sent to her and each of the parties as soon as possible thereafter and in any event, not later than 4.00pm, 30 July 2011.

2. The Independent Children’s Lawyer shall file and formally serve a copy of that written report when received by her.

3. In the event that Mr O, in that written report, recommends that the child return to Australia within a month, the mother shall, by not later than 5.00pm Canadian time on 12 August 2011:

   (a)Arrange to purchase an airplane ticket for the child to return to Australia, so as to arrive Brisbane by not later than 5.00pm 14 August 2011;

   (b)Arrange to purchase an airplane ticket for herself or the maternal grandmother so as to accompany the child to Brisbane on that flight;

   (c)Provide a copy of both such tickets via email to the father within 24 hours of purchase at … and at the same time provide a copy of each such ticket via email to the Independent Children’s Lawyer at … .

4. In the event that Mr O in his written report recommends that the child remain in Canada for a period of approximately three months, the mother shall:

   (a)Arrange to purchase an airplane ticket for the child to return to Australia, so as to arrive in Brisbane by not later than 5.00pm, Friday, 24 September 2011;

   (b)Arrange to purchase an airplane tickets such that the child is at all times accompanied by an adult during his travel from Canada to Brisbane, including being accompanied on the flight to Brisbane;

   (c)Provide a copy of both such tickets, within 24 hours of purchase, via email to the father by not later that 5.00pm Canadian time on 5 September 2011 at … and at the same time provide a copy of each such ticket via email to the Independent Children’s Lawyer at … .

5. Should the mother default in complying with any of the subparagraphs of either of the preceding paragraphs of these orders, the father shall, upon proof of said default, and upon written notice to the mother and the Independent Children’s Lawyer, be at liberty to apply for an order for the mother to show cause why the $10,000 bond currently deposited by her at the Family Court of Australia at Brisbane, should not be forfeited.

6. Upon the mother returning to Brisbane on or before 24 September 2011, the mother shall spend time with the child for four consecutive days as agreed in writing and, failing agreement, from 9.00am on 28 September 2011 until 5.00pm on 1 October 2011.

7. The parties shall each do all such things, sign all such documents and pay equally all such reasonable fees as may be required, so as to participate in any interviews requested of them by Family Consultant, Mr O, so as to, in particular, facilitate observations by him of the mother in the company of the child.

8. The mother shall depose, in addition to all such other matters which she might consider appropriate, in her affidavit of evidence-in-chief for trial as to the activities undertaken by her and the child during his time in Canada and where the child resided during that period of time.

AND IT IS FURTHER ORDERED THAT

1. The Contravention Application filed by the father on 11 July 2011 is dismissed.

2. In respect of the Application in a Case filed by the father on 11 July 2011:

   (a)Paragraph 1 is adjourned to the trial judge.

   (b)Paragraph 2 is struck out.

3. The Application in a Case filed by the Independent Children's Lawyer on 11 July 2011 is dismissed.

4. The Application in a Case filed by the mother on 11 July 2011 is dismissed.

5. The Contempt Application filed by the mother on 11 July 2011 is adjourned to the trial judge:

NOTATIONS

(a)The trial of this matter is listed for hearing before the Honourable Justice Kent on 3, 4, 5 October 2011.

(b)The mother has indicated to the Court previously in oral evidence, and indicates to the Court again today, that the child will be staying with her during his time in Canada at her usual place of residence.

(c)The mother has indicated that she intends to make urgent application to the trial judge to appear at the trial by video link or other electronic means so as not to appear in person, and that such application will be made to the trial judge prior to the trial commencing, in order for his Honour to determine such application.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 9490 of 2008

Ms Fluvium

Applicant

And

Mr Carlson

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This matter comes before me today pursuant to a number of applications made by each of the mother and the father and an application by the Independent Children’s Lawyer.  The severity of the current situation can perhaps be gleaned simply by saying that the Independent Children’s Lawyer seeks a recovery order in respect of the child D, born in June 2006. 

2. The history of this matter that sees the current applications being heard by me today involves, I’m told by Ms Toomey, who is the Independent Children’s Lawyer, already some 30 or more appearances before this Court.

3. Initially this matter was listed before Barry J, and, I gather, there were numerous appearances before his Honour prior to his Honour’s retirement.  On 30 June 2011, the Principal Registrar made a series of orders designed to facilitate the child travelling to Canada, where his mother lives.  A trial is due to take place before Kent J on 3, 4 and 5 October this year – that is, in less than three months.

4. A measure of the complexities in this matter and the plethora of allegations and counter-allegations that have been made by each of the parties (and the apparent constant necessity for these parties to invoke this Court in attempts to resolve their various disputes) can be seen in the orders of the Principal Registrar wherein the Registrar quite sensibly, if I may say so with great respect, sought to consolidate the orders as earlier made, as they had been varied and discharged by various other orders. 

5. Those orders as consolidated appear as a notation to the orders made by the Principal Registrar at paragraph 16 thereof. 

6. The father sought to review the Principal Registrar’s orders and appeared before Bell J on 7 July 2011.  His Honour made a number of orders on that day:

   IT IS ORDERED THAT:

   1.   The father is to present the child [D] born […] June 2006, to the Child Dispute Service, Family Court of Australia at Brisbane at 4.00pm today in order for the child to be handed to the maternal grandmother and the father is to come with the paternal grandfather and/or the paternal grandmother.

   2.   IT IS REQUESTED that Qantas extend the time for payment of the child’s airfare to Canada until 5.00pm today.

   3.   The mother is to book a flight for the child to return to Australia in one month from today’s date.

   4.   The mother is to forthwith provide the father with the child’s travel details including dates of travel and flight numbers.

   5.   The mother is to provide the Independent Children’s Lawyer with the address of any residence at which the child will be residing for a period of more than 48 hours other than the mother’s present residence and a telephone number at which she can be contacted in the case of emergency.

   6.   The expired passport of the mother held by the Independent Children’s Lawyer is to be returned to the mother for the purpose of the mother obtaining a passport for travel to Australia for the trial, such expired passport to be returned no earlier than 10 days before the mother is due to travel.

   7.   The Order of 30 November 2010 be stayed pending trial of the matter.

   8.   The Application for Final Orders filed on 25 August 2009 be adjourned to 10.00am on 3 October 2011 for trial for three days.

   9.   Otherwise all applications are adjourned to 10.00am on 3 October 2011.

7. Those orders, and the earlier proceedings, can be seen to contemplate a number of things occurring.  First, the child was to travel to Canada in order to spend time with his mother.  As a result, I gather, of allegations and concerns raised by the father, arrangements were put in place for a family consultant, Mr O, to speak to the child shortly after he arrived in Canada so as to ascertain how he was coping and reacting to the time with his mother. 

8. In the event that Mr O, in consultation with the Independent Children’s Lawyer, came to the conclusion that the child was comfortable, secure and happy in his mother’s care in Canada, it was contemplated that the child would spend about three months in Canada before returning to Australia for what was then mooted  to be a trial in about October. 

9. In the event that Mr O in consultation with the Independent Children’s Lawyer came to the conclusion that the child was not happy, content and otherwise feeling secure in Canada in his mother’s care, the child was to be returned to Australia within a month of his departure to Canada. 

10. Obviously enough, given that the child is barely five, the orders contemplated that the child would be accompanied on his travel to and from Canada.  The orders contemplated that the maternal grandmother would facilitate changeover and would accompany the child to Canada, and in the event that he needed to return to Australia within a month, she would in turn accompany him back to Australia. 

11. In the event that he was to return to Australia in three months and there was, as contemplated, to be a trial in October, the orders provided that the mother would return with him to Australia at that time. 

12. The mother makes, I gather, a number of allegations of serious domestic violence.  She makes allegations that the father has stabbed a man in Canada; and that he was deported from that Country. She says that she has been frightened of him and remains frightened of him.  

13. So much is this so, she says, that she seeks to make application to the trial Judge to give her evidence in the trial, and to participate in the trial, via electronic means; she says she is so frightened of the father that she doesn’t wish to be in the same city as him. Her fear of him is such, she says, that in circumstances where I had indicated during discussions with the parties that, upon the child’s return to Australia in October pending the trial, she might be afforded time with the child for four consecutive days, she indicated that she would not take that time up because she did not want to be in the same city as the father. 

14. The travel to Canada contemplated by the orders to which I have just referred, coming, as they do, after a long process of litigation with a plethora of allegations and counter-allegations was thwarted at the airport.

15. In a document dated 9 July 2011, which is exhibit AE to the affidavit of the Independent Children’s Lawyer, a Senior Constable BY from the Australian Federal Police refers to an incident which occurred at the Brisbane International Airport at the time that the child and his maternal grandmother were to board a flight to Canada pursuant to the orders that had been made.  It is, I think, instructive to quote that document in its entirety:

    Today at about 8.15 am, I had contact with your client, [the child].  At 0811 we received a call from Australian Federal Police communications to attend row 9 on level 4 of the Brisbane International Airport.  When we attended, we spoke to [the maternal grandmother] and [the paternal grandmother].  Both provided copies of family law orders and emails from yourself.  A witness (Qantas staff member) stated [the maternal grandmother] was in line with [the child] when [the paternal grandmother] came over and grabbed [the child] by the hand.  [The maternal grandmother] tried to move him in front of her to the counter. 

    There was a tug of war with the child, with him becoming upset.  [The maternal grandmother] had then released the child, who ran to his father.  The father then left the International Airport with the child.  Police then read the orders and decided [the maternal grandmother] was lawfully taking the child from the country.  Police did contact the after hours number of the Family Law Court.  Their concern was if the child was being unlawfully removed from the country.  As this was not the case, was to wait until Monday.  We then tried to contact yourself on your office phone. 

    As the recovery provision of the order had not been activated by the Family Law Court, the child could not lawfully be recovered, as there were no welfare concerns for the child, as he had already been in his father’s care.  Police then attended DFO and located the child’s father, [Mr Carlson], and his mother and [the child].  Both [the father] and his mother were told they had breached the order, that they should attend the Court to sort the matter out.  [The maternal grandmother] was given advice for her daughter to activate the recovery order and to contact yourself.  I assisted [the maternal grandmother] to delay her flights with Qantas …

16. As can be seen, then, an ugly confrontation occurred at the airport which does none of the adults in this case any credit.  The fact that a five year old child could be the subject of a “tug of war” between alleged adults at an airport barely needs to be described so as to attract the approbation which it deserves.  I suppose it is the sort of behaviour that might be expected in a case where some 30-odd applications and appearances have been necessary before this Court. 

17. In any event, what transpired is that, yet again, further allegations and counter-allegations have ensued which assert that one party or the other had failed to comply with the orders. 

18. The father asserts that the child was not entitled to leave Australia, because orders in respect of the provision of an itinerary, copies of air tickets and the like have not been complied with.  The mother for her part said that orders had been complied with and that, pursuant to earlier orders made by the Court, she had provided a bond of $10,000 so as to secure the return of the child to Australia, should that become necessary by reason of breach of any orders.

19. It needs to be said that the orders (in their much amended and varied form) might be seen to be somewhat confusing. 

20. Moreover, it should be said that it would appear that matters may have been raised by Bell J in court that did not find their way into the specific terms of his Honour’s orders that may have given rise to some misunderstandings on the part of the parties about obligations and entitlements. 

21. In saying that, I obviously mean no criticism of his Honour, but, during the course of my attempting to ascertain what had transpired so as to cause the ugly scene at the airport to which I have referred, it became somewhat difficult to follow what each of the parties asserted were obligations, entitlements and requirements by reference to the specific terms of the orders.

22. That being the case, it seems to me entirely inappropriate to deal with the application for contravention by the husband, which was one of the applications brought by him, or the application for contempt, which was one of the applications brought by the mother. 

23. I would observe, without, of course, in any way, shape or form determining the merits or otherwise of those applications, given what is required procedurally of proceedings of that type, that at least some of the assertions contained in those respective applications are ill-founded. 

24. Nevertheless, I consider that what is more important is to ascertain what might be in the best interests of a five year old boy who has been the subject of a tug of war between his grandparents at an airport. 

25. With that in mind, I determined to seek submissions from the Independent Children’s Lawyer and each of the parties as to the arrangements that could see the child travelling to Canada to see his mother in accordance with orders that had previously been made, whilst at the same time providing some security for the father that the child would be returned from that country. 

26. I observe in the latter respect that Canada is a signatory to the Hague Convention and that, pursuant to previous orders, the mother has provided an undertaking solemnly given to the Court and a bond in the sum of $10,000 so as to secure compliance with those orders.

27. Nevertheless, and despite those matters, the father says he remains concerned about the mother’s willingness and/or honesty in her assertions that the child will be returned to Australia in accordance with the orders. 

28. That being the case, I have determined that what is best for the child is to attempt to fashion orders that, as best as can be done, bring clarity to the position as between the parties that will see the child delivered to his mother in Canada so as to spend time with her at the earliest possible opportunity, as contemplated by the orders, and to provide the measure of security that the father asserts is required. 

29. With that in mind, then, I foreshadowed in discussion with the parties that I would make orders which see the child being brought to the child dispute services this afternoon and for a changeover to there occur between the paternal grandmother and the maternal grandmother. The matter was stood down and that changeover has, as I deliver these reasons, already occurred. The child will travel with his maternal grandmother to Canada on a flight tomorrow morning. 

30. In order to address the concerns previously addressed in earlier proceedings, I have directed the Independent Children’s Lawyer to arrange for the family consultant, Mr O, to carry out the report process earlier contemplated and to provide a report to the parties within a short time thereafter. Those interviews are to take place in a couple of weeks or so, and the report will be available by 30 July. 

31. The significance of that date is that the report will be available prior to the one-month period earlier referred to.  The orders will provide that, in the event that Mr O, in consultation with the Independent Children’s Lawyer, recommends that the child be returned to Australia within a month, the mother shall immediately arrange to purchase airfares for the child and an accompanying person (presumably the maternal grandmother) to return the child to Brisbane by a date specified in the orders and to provide forthwith a copy of each of those air tickets to the father and the Independent Children’s Lawyer within 24 hours of purchase.

1. A similar arrangement is made in the orders in the event that Mr O recommends that the child remain in Canada with his mother for the period of three months. 

2. In that event, the mother makes it clear that she, through the fear that she alleges she possesses of the father and her concerns about the father’s behaviour towards her, will not return to Brisbane.  The form of the orders will be such that she can facilitate the child’s return to Brisbane by the date specified in a manner that will see him accompanied for the whole of the journey, albeit that she may not herself accompany him on the last part of that journey to Brisbane. As a result, it is not necessary for her to be in Brisbane at the same time as the child and the father.

3. The orders will, again, provide that a copy of the relevant air tickets be provided to the father by a specified date, over two weeks prior to the departure.  The orders provide for copies of those air tickets to be sent to the Independent Children’s Lawyer and the father via email in each case so that there can be no doubt on the part of the father that those tickets have been purchased and the order is to be complied with. 

4. The timing of those copies being provided to the father should be such so as to confirm that the child will be returned to Brisbane within a month or three months, as the case may be. 

5. Further, the orders will provide, upon proof of the failure of the mother to comply with those orders, for the mother to be asked to show cause why she should not forfeit the bond of $10,000 currently being held by the Court at Brisbane. 

6. I proposed that the parties should each spend time with the child in the approximate 10 days or so that the timeframe provided by the orders contemplates the child being in Australia prior to the commencement of the trial and, during that time, for the child to spent four consecutive days with the mother as agreed between the parties. The mother, again as a result of the assertions that she makes with respect to the father’s violence and her fear of him, that she will not avail herself of that time in that event.  I consider it nevertheless appropriate that there be provision for time in the orders so that the mother has the opportunity to see the child, should she so wish.  In the event that she determines, for whatever reason, that she cannot, or will not, do so, then she must advise the father in writing well prior to the commencement of that time so as to afford him the opportunity to make other arrangements.

7. Ms Toomey contemplates that Mr O may seek to arrange observations of the mother and child, given that he will have had no opportunity to do so between when the child returns to Australia and the commencement of the trial.  I have made orders facilitating that occurring, and so too should Mr O consider it appropriate to see the child and the father consequent upon the child spending a period of time with his mother in Canada. 

8. Again, the mother raises as a possibility the fact that, if those interviews require her to do something where she considers she is not safe or would otherwise be frightened, then it’s a matter for her, as it seems to me, to raise those with Mr O, which of itself may be a matter upon which Mr O may seek to comment.

9. The orders, then, attempt to strike the balance that I have earlier referred to in seeking to deal with this most unfortunate situation. 

10. As a result of the orders to be made by me, the Independent Children’s Lawyer’s Application in a Case can be dismissed. 

11. Each of the parties represent themselves, and I am not prepared to dismiss the applications for contravention and contempt respectively, despite some misgivings I have about the evidentiary foundation for the making of any orders pursuant to those remedies.  I consider it preferable, and more consistent with the principles of natural justice for the parties to have the opportunity to present such cases as they seek to present in respect of either of those applications before the trial Judge on 3 October. 

12. Otherwise, the parties’ respective Applications in a Case can be very briefly dealt with. 

13. For reasons given during the course of discussions with the parties, the orders sought by the father in paragraph 1 of his application in a case filed 11 July 2011 is a matter best left to the trial Judge. 

14. The Court does not have power to make the order sought at paragraph 2; it seeks a review of an order made by a Judge.  The orders made by the Judge can only be the subject of an appeal; that paragraph will be struck out.  As I have indicated earlier, the mother says that she wishes to appear at the trial of this matter by electronic means. I have made it clear to the mother that, should that be her intention, it is not appropriate for me to purport to bind the trial Judge in that respect. I have made it clear to her that she needs to file and serve an application with the required accompanying affidavit as soon as possible so that that matter can be dealt with by the trial Judge well prior to the commencement of the trial.

15. A further Application in a Case filed on 6 July 2011 was, it seems, before Bell J on 7 July 2011.  His Honour made an order staying orders made on 30 November 2010 pending an appeal of that decision.  It seems that his Honour otherwise intended that the matters the subject of that application (in paragraphs 3 through 9) be dealt with as necessary by the trial Judge.  In that respect, I note that his Honour ordered that the application be adjourned to 3 October, which is the first day of the trial.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 11 July 2011.

Associate: 

Date:  26 July 2011