Grace & Dobell

[2009] FamCA 661

FAMILY COURT OF AUSTRALIA

GRACE & DOBELL [2009] FamCA 661

FAMILY LAW – CHILDREN – Application that previous orders had been frustrated – Mother seeks to remove Child’s name from the Airport watch list and have Registrar sign for a passport application in accordance with orders – Father’s application fundamentally a stay of orders – The requirements of stay not satisfied – Orders not frustrated

FAMILY LAW – COSTS – Indemnity costs – Father wholly unsuccessful – Indemnity costs not warranted – Costs ordered

APPLICANT:

Ms Grace

RESPONDENT: Mr Dobell

FILE NUMBER: SYC 7297 of 2008

DATE DELIVERED: 13 July 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Barry J

HEARING DATE: 13 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Barry of Counsel appearing for Applicant Mother

SOLICITORS FOR THE APPLICANT: Abrams Turner Whelan Family Lawyers

COUNSEL FOR THE RESPONDENT: Respondent Father appearing in person

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The Court directs that the Australian Federal Police remove the name of the child, … born … July 2002, from the Airport Watch List at all points of international arrivals and departures in Australia.

2. The Mother be at liberty to take the child out of the jurisdiction of Australia.

3. The Father be restrained from placing the child’s name on the Airport Watch List other than by agreement in writing with the Mother or by further Order of this Honourable Court.

4. The Registrar of the Sydney Registry of the Family Court sign the passport application for the child’s passport immediately on behalf of the Father pursuant to Section 106A of the Family Law Act 1975.

IT IS ORDERED THAT:

1. The Father pay the Mother’s party and party costs as agreed, or in the event the parties are unable to agree, to be taxed.

IT IS NOTED that publication of this judgment under the pseudonym Grace & Dobell is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7297 of 2008

MS GRACE

Applicant

And

MR DOBELL

Respondent

REASONS FOR JUDGMENT

1. On this morning's date, I am asked to deal with an application in a case filed on Thursday last and given an urgent return date of this morning, 13 July. The orders sought, apart from procedural orders for short service and listing urgently, is that the name of the child of the parties, a son born in July 2002, be removed from the airport watch list. The purpose of that is to allow the mother to depart Australia with him for Singapore pursuant to consent orders made on 18 February this year. The mother seeks a further order that the respondent father be restrained from placing the child’s name on the airport watch list until such time as the child returns to Australia to reside permanently. She also seeks an order that the Registrar of this Court sign the necessary documentation for the child’s passport immediately on behalf of the respondent father pursuant to s 106A. She also seeks an order that the father pay her costs on an indemnity basis.

2. The starting point of my consideration of these matters is the consent orders made by Bell J on 18 February this year.  The parties were each legally represented by counsel at the trial before his Honour at that time.  I am informed that negotiations followed after his Honour gave certain preliminary views in the matter.  The consent orders which issued provided for the mother to be permitted to relocate with the child to Singapore for a period of about 20 months or so.  The relocation is work related.

3. On today's date, the wife appears through counsel.  She relies on an affidavit filed in conjunction with her initiating application.  Her counsel has produced a helpful chronology summarising the history of this matter since the parties married back in October 2001.  Annexure A to the mother's affidavit is the family report prepared for the hearing before Bell J.  It is a report by a clinical psychologist, Ms A.  The report is dated 17 February 2009 and, in effect, considers the various relevant factors on the relocation issue and comes down in favour of the child being able to reside for a period in Singapore with his mother.  It was on that basis that the matter proceeded to consent orders.

4. The consent orders of February provided for the mother to depart on 17 April and to return on 1 November next year.  The temporary relocation, as I have indicated, is work related.  The mother holds a senior management position with her employer.  I am informed that, and for present purposes I accept, after she has done this stint, there would be no further requirements for overseas postings, and the mother will be able to move up the chain of command by taking up a position full time in Australia.

5. The difficulty the mother now faces arose because on 6 July this year the father filed an initiating application in the following terms:

   “The father seeks orders on a final basis that the child remain in Australia in residence with the father for the duration of the mother's relocation and residence overseas.  The child spend half the holidays with the mother and if the child goes to visit his mother, the passport duration must be limited to the dates of the visit, and the mother is to place in trust $30,000.”

6. Why he is seeking another $5000 over and above the $25,000 provided for in the consent orders made only some four months ago is not readily apparent.  If the mother visits Sydney, he is proposing she can see the child up to two weeks per month.  The Court is asked to retain possession of the child's passport and to issue various other orders placing the child's name on the airport watch list.

7. At the present time the child's name is on the airport watch list, not by way of any judicial determination but simply because the father has filed the application.  Once it is accepted for filing and sealed, the order is forwarded to the Australian Federal Police and, without more ado, the child's name is on the airport watch list.

8. The father filed three affidavits in support of his application filed on 6 July.  That application is returnable before the Court on 11 August.  I am not hearing that application on today's date.  I am not asked to, and I will not be hearing it, as I will not be in the Sydney Registry at that time, but I simply point out that the Rice and Asplund principle may well be held to apply.  The Rice and Asplund principle simply says that there has to be a significant change in circumstances before a Court will reopen a matter which has been recently litigated.  Courts are disinclined to allow the door to a court room to become a revolving door where parties can receive a determination, wait a few months and come back in relitigating the very same issues.  The law provides there has to be significant change in circumstances to justify any reopening.

9. The father is not legally represented.  On today's date I note he sought an adjournment to obtain legal representation.  The effect of giving him that adjournment is to frustrate the mother's application altogether.  He has elected not to be legally represented in the much more complex initiating application he filed on 6 July.

10. A response has been filed by the father to the mother's application filed last Thursday, in which he seeks orders that the child's name remain on the airport watch list and that the passport application not be signed.

11. I note that the consent orders provided for the child's passport to be renewed.  The child currently has a passport but cannot enter Singapore because there is a need to have a passport that is valid for a period greater than six months, and the child's passport, as I understand it, is due to expire in about September.  The Department of Foreign Affairs will, in those circumstances, issue a second passport so the child will have two valid passports, one of which will expire in a few months time.

12. The father says that the child was placed on the watch list because the matter is pending before the Family Court of Australia.  That is true, but only because he filed the application on 6 July.  He says the mother presents as a flight risk.  He consented to that. He consented to those orders back in February this year that the mother can go to Singapore for work purposes.  I do not regard the mother as a flight risk in any way, shape or form.  She is in an Australian citizen.  She has family in Australia, presumably property in Australia.  Her employer is here in Australia and such like, as referred to during the course of submissions.  He refers to her continued lack of regard for her obligations as defined by the Family Court of Australia.  I am not quite sure what that relates to.  I have read his material.  Certainly there was a delay in a number of respects, in particular, in lodging the security deposit of $25,000.  There was a delay, the mother says, in being able to make the arrangements, and because the term had started at the child's school, she agreed to the child finishing that term at his current school.  The further reason is said to be the significant change of circumstance regarding the child’s learning and developmental difficulties and health issues. 

13. The issues to be determined today essentially are do I lift the passport watch and do I make an order for the Registrar to sign the passport papers?  If I accede to the mother’s application she is going to have a fairly busy day getting the new passport in order for the child and herself to travel to Singapore tomorrow.

14. The consent orders of 18 February are particularly detailed.  Unfortunately, as is the case with many orders, they have not progressed smoothly in some respects.  To the parties' credit, as I understand it, the spirit of the orders has been complied with in that they have continued the weekabout arrangement.  The mother has relocated to Singapore in April some time, and every week she has been commuting to Australia to spend a week with her son pursuant to those orders.  Over the last four weeks, for reasons I do not have to go into, the child has been residing with his father.

15. The father sets out the changed circumstances in his affidavit filed today.  One of the significant changes, he says, is the child’s learning and developmental difficulties and health issues.  He relies on a report of the speech pathologist.  The report is dated April this year.  Why it has taken him from April until 6 July to suddenly frustrate the mother's travel plans is not adequately explained.  The mother, in turn, produces a series of emails dated as early as 9 February and others dated 1 July and 2 July, which would indicate she is well aware of the educational problems.  The child will be attending a prestigious school in Singapore and liaison can take place between the child’s school Sydney and the school in Singapore.  I do not perceive the issues raised by the father are of such significance as to lead to the complete frustration of the orders of February this year.  Effectively it is a stay order that the father is seeking and the criteria upon which I would have to apply for a stay to be granted simply is not there.  Again, there is no reason advanced as to why the mother cannot get adequate medical treatment in Singapore if the child has problems with asthma.  I note that there is a degree of hyperbole about some of the father's claims about the child's progress.  For example, under the heading "Summary", the final paragraph on page 2 of the report:

    "[The child] presents in the average range for overall language.  He, however, has a mild receptive language delay with particular difficulty, in the area related to processing incoming orally presented information."

16. Where the child has been having weekabout, where the child has been subject to litigation between his parents for some significant time, which, once again, has flared up, I simply observe that it is not uncommon for children to have difficulties with their educational process with accompanying emotional problems.  If the parties can back off and respect the rights of the child to enjoy his childhood and not be the subject of parental dispute, it may well be an enormous stress is taken from the child and his education will improve significantly.  By all accounts, he is a happy, outgoing, talented young boy.

17. The father also raises issues of violence.  There is nothing new about any of that.  It was all before the Court in February this year, and he consented to the orders.  So I do not place any weight on that.  He has produced an affidavit from the applicant's mother.  Again, there is nothing new about any of that material.  It has been before the courts.  It has been before the lawyers and the parties and the consent orders were made.

18. As I have noted, the mother is scheduled to fly out tomorrow.  There were obligations on the father to obviously sign the various documentation to allow for a passport to be issued to the child.  The father says he signed those months ago, but they have been retained by his solicitor because the mother had not complied with the requirement to lodge $25,000 security.  I do not need to go down that track at this point in time as to the legitimacy of that.  The mother says she was due to fly out today.  She has postponed the flights to tomorrow.  The child is enrolled at the school in Singapore.  The circumstances seem to be that the father has had the child in his care for four weeks, is going to miss the child enormously ‑ that is understandable ‑ and he has changed his mind and he is seeking to advance various reasons to allow his son to stay.  Unfortunately he does not convince me that the reasons are of such significance that the orders should be set aside. 

ORDERS DELIVERED 

1. The issue of costs falls to be determined pursuant to the terms of s 117 of the act.  If the Court is of the opinion that circumstances justify it in doing so, the Court may, subject to the subsections which follow, make such order as to costs as the Court considers just.  Relevant considerations include the financial circumstances of each of the parties.  I proceed on the basis that either party could meet a costs order.  No submission has been made to the contrary that the parties are indigent or financially pressed.  There is no issue of legal aid.  I have had regard to the conduct of the parties, and it seems to me that the matter has been previously litigated and this was a last‑minute unsuccessful attempt to relitigate the same issues.  Whether the proceedings were necessitated by the failure of the parties to proceedings to comply with previous orders of the Court, as I say, there have been glitches in the smooth processing of the detailed orders of 18 February, but, by and large, the proceedings have been necessitated by the fact the father has reinstituted proceedings, which I found prima facie not of sufficient merit to frustrate the orders of 18 February.  I accept the mother has been wholly successful and the father has been wholly unsuccessful in the proceedings before me today.  I do not have details of any costs agreement.  I assume there is a costs agreement.  It is a case where I do not find it is of sufficient magnitude to warrant indemnity costs.  However, I am of the view that a costs order is appropriate.  I will make an order the father pay the applicant’s costs as agreed or in the event there is no agreement as assessed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  13 July 2009