Halstead and Lees and Anor (No 2)

[2020] FamCA 234

FAMILY COURT OF AUSTRALIA

HALSTEAD & LEES & ANOR (NO. 2) [2020] FamCA 234

FAMILY LAW – ENFORCEMENT OF ORDERS – Recovery order – Location orders – Where orders were made permitting the mother to remove the children from the Commonwealth of Australia for the purposes only of travel to one country – Where the mother has failed to return with the children to the Commonwealth of Australia and does not intend to return the children to the jurisdiction – Where the mother and children’s whereabouts are unknown – Where the case needs to be resolved expeditiously – Recovery order issued – Location orders issued

FAMILY LAW – WARRANT FOR ARREST – Where the mother is not in the Commonwealth of Australia – Where it is unlikely a warrant will be able to be executed – No advantage to assist in the recovery of the children – Warrant for arrest not issued

FAMILY LAW – CHILDREN – With whom a child lives – Where the children need stability – If the mother returns the children to the Commonwealth of Australia the children will live with the paternal grandmother during the period of the adjournment

FAMILY LAW – PRACTICE AND PROCEDURE – Publication orders – Where the paternal grandmother seeks publication orders in relation to the mother, the father and the children – Purpose of section 121 of the Family Law Act 1975 (Cth) considered – Exceptional circumstances do not exist to deviate from protecting the identification of the children – Publication order not made

Family Law Act 1975 (Cth) ss 67N, 67N(3), 67N(4), 67Q, 69ZW, 121

Rice & Asplund (1979) FLC 90-725

APPLICANT: Mr Halstead

1st RESPONDENT:	Ms Lees
2nd RESPONDENT	Ms Halstead

3rdRESPONDENT: Ms W

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

FILE NUMBER: ADC 4768 of 2017

DATE DELIVERED: 22 January 2020

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

JUDGMENT OF: Berman J

HEARING DATE: 22 January 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lindsay

SOLICITOR FOR THE APPLICANT: Angela Ferdinandy

COUNSEL FOR THE 1st RESPONDENT: Ms Pyke QC

SOLICITOR FOR THE 1st RESPONDENT: Mellor Olsson

COUNSEL FOR THE 2nd RESPONDENT: Ms Lewis

SOLICITOR FOR THE 2nd RESPONDENT:	Douglas Hoskins Legal
COUNSEL FOR THE 3rd RESPONDENT:	Litigant in person
SOLICITOR FOR THE 3rd RESPONDENT:
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Kent
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Legal Services Commission of South Australia

UPON NOTING that the proceedings remain listed for final hearing to commence on 20 April 2020

Orders

1. That the Applications for Contravention and Contempt filed 21 January 2020 be listed for hearing at 10.00 am on 17 February 2020 (2 days allowed).

2. Upon the indication that an Application in a Case is to be filed by the father on or before 4.00 pm on 24 January 2020, if so filed, it shall be listed for mention at 9.00 am on 17 February 2020.

3. That time is extended to 20 January 2020 for the father to file his trial affidavit.

4. Pursuant to s 67Q of the Family Law Act 1975 (as amended), a Recovery Order do urgently issue authorising/directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:

   (a)to find and recover the children X born … 2013 and Y born … 2015; and

   (b)to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the children may be found; and

   (c)to deliver the children to the paternal grandmother Ms HALSTEAD at such place as the paternal grandmother and the person effecting such recovery agree to be appropriate.

5. That all previous parenting orders in favour of the mother be suspended.

6. That during the period of the adjournment the children live with the paternal grandmother.

7. That paragraph 7 of the orders made on 20 March 2019 and the injunctions referred to therein be discharged.

8. That the mother be restrained and an injunction is hereby granted restraining the mother from removing or causing the children to be removed from the paternal grandmother’s care.

9. Pursuant to s 67N of the Family Law Act 1975 (as amended), Centrelink and the Australian Border Force and/or Department of Home Affairs do provide the Registrar of this Court with information that is contained in or comes into the records of the said Departments about the location of the first respondent mother, MS LEES, and the children X born … 2013 and Y born … 2015.

10. Pursuant to s 67N of the Family Law Act 1975 (as amended), Medicare do provide the Registrar of this Court with information that is contained in or comes into the records of the said Department about the location of the first respondent mother, MS LEES, and the children X born … 2013 and Y born …2015.

11. Pursuant to s 67N of the Family Law Act 1975 (as amended), the National Disability Insurance Scheme do provide the Registrar of this Court with information that is contained in or comes into the records of the said Department about the location of the first respondent mother, MS LEES, and the children X born … 2013 and Y born … 2015.

12. That pursuant to s 67N(4) that there are exceptional circumstances which warrant three government agencies to produce information to this honourable Court.

13. That pursuant to s 67N(3)(b)(ii) the Court is satisfied that there are special circumstances to make a location order within seven (7) days of service of the application on the Departments.

14. That the mother’s solicitors, Mellor Olsson, do all things necessary to cause the entire funds currently held in their firm’s trust account on the mother’s behalf pursuant to paragraph 5(c) of the orders dated 23 October 2019 to be deposited into the Douglas Hoskins Legal Law Practice Trust Account within twenty four (24) hours of the making of this order and that the paternal grandmother’s solicitors thereafter be at liberty to disburse those funds for the purposes of payment of any costs or fees reasonably incurred in making application to this or any other court to ascertain the whereabouts of the children or to secure the return of the children to Australia or to deal with the mother for her failure to comply with orders of this Court or in making any application or taking any action or step ancillary or supplementary to such applications.

15. That upon an affidavit being filed that indicates that the Australian Federal Police and/or Australian Border Force and/or the Department of Home Affairs are able to produce the documents by 17 February 2020 that are contained or comes into their records of the said Departments about travel into or out of the Commonwealth of Australia by Mr B born on … 1993, Ms W of H Street, Suburb N in the State of South Australia and Ms O of U Street, Suburb Z in the State of South Australia, leave is granted to the paternal grandmother to cause to be issued a subpoena directed to the said Departments for the production of those documents.

16. That paragraphs 16 and 17 of the orders sought in the Application in a Case filed by the paternal grandmother on 22 January 2020 are dismissed.

17. That paragraphs 4, 6, 18, 19, 20, 21, 22, 24 and 25 of the orders sought in the Application in a Case filed by the paternal grandmother on 22 January 2020 are adjourned to 10.00 am on 17 February 2020.

18. BY CONSENT, Ms W be restrained and an injunction is granted restraining her from leaving the Commonwealth of Australia.

19. That the mother do within seven (7) days of this date deliver up the children X born … 2013 and Y born … 2015 to the paternal grandmother.

20. That the mother do attend the adjourned hearing of the Application in a Case filed on 22 January 2020.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Halstead & Lees has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT DARWIN

FILE NUMBER: ADC 4768 OF 2017

MR HALSTEAD

Applicant

And

MS LEES

1^st Respondent

And

MS HALSTEAD
2^nd Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The proceedings before the Court relate to the ongoing parenting arrangements in respect of two children, X born … 2013, and Y born … 2015 (“the children”).  Mr Halstead is the applicant father (“the father”).  Ms Lees is the respondent mother (“the mother”).  Ms Halstead is the paternal grandmother (“the paternal grandmother”).  It is also a relevant consideration that Ms W (“the maternal grandmother”) be formally brought into the proceedings.

2. Before the Court for determination is an Application in a Case filed by the father, supported by an affidavit of his instructing solicitor seeking orders that there be an extension of time to 20 January 2020 for the father to file his trial affidavit.  That affidavit is on the Court file.  I propose to make that order of extension nunc pro tunc.  What is also before the Court is the substantive interim application of the paternal grandmother filed on 22 January 2020 supported by her affidavit.

3. There are also Applications for Contravention and Contempt, both naming the maternal grandmother as the respondent to the proceedings.  I am being asked to list those applications for an urgent hearing. 

4. Mr Lindsay appears for the father who is present.  Ms Lewis of counsel appears for the paternal grandmother who is present.  Mr Kent appears in his capacity as the Independent Children’s Lawyer (“ICL”) and Ms Pyke QC appears for the absent mother.  There is also an appearance by the maternal grandmother in respect of the Applications for Contravention and Contempt, but also for reasons that will become apparent, having some further involvement in the proceedings. 

5. Whilst there is no criticism in respect of the urgency in which these proceedings have been listed, it is to be noted that I am currently in the Darwin Registry of the Family Court of Australia, and the short notice in respect of these matters has meant that the file that relates to the proceedings generally remains in the Adelaide Registry.  Obviously I am separated from that file.  At the commencement of this hearing, I indicated to counsel the extent of the documents that I had, and I will do the best that I can to deal with the matters, but of necessity, the judgment that I deliver by these reasons may well be of more limited compass.

6. The overarching consideration is that following an order made on 23 October 2019 which allowed for the mother to remove the children from the Commonwealth of Australia for a period of 14 consecutive days in the month of January 2020, for the express purpose being travel to Thailand, the solicitors for the father and the paternal grandmother have determined that the mother has not returned the children to the jurisdiction.  Moreover, it is reasonable to assume that the mother at this stage does not indicate an intention to return the children.

7. That is not to say that she will not or that when the significance of these issues are given some better and more mature reflection by her, that she won’t change her mind.  For the purposes of these proceedings, they are predicated upon an acceptance by the Court, and without more being able to be said by the solicitor and Queen’s Counsel for the mother, that she is not in the Commonwealth of Australia, and does not intend to return. 

8. By way of background, the father, by application on 23 September 2019, sought to restrain the mother from removing the children from the Commonwealth of Australia, and that there be put in place an Airport Watch List Order and that the children be placed upon an Airport Watch List.

9. That application was supported by affidavit, and the apprehension of the father was that given the mother’s fluency in a foreign language, and the circumstances by which her business has an international flavour to it, there was every good reason in the circumstances of the case that she might not return.  The application was also supported by a further application filed by the paternal grandmother on or about 11 October 2019, in effect seeking similar orders.  The mother filed a response by way of a Response to an Application in a Case, which sought that she be permitted to travel with the children. 

10. Submissions were heard and an order was made on 23 October 2019 which was comprehensive of interim parenting arrangements, the appointment of a family consultant to observe the interaction of the children, their father and the paternal grandmother, and later, orders that observed interaction take place pursuant to s 65L of the Family Law Act 1975 (Cth) (“the Act”). It is paragraph 4 that brings the proceedings today into sharp focus namely, an order was made permitting the mother to remove the children from the Commonwealth of Australia for up to 14 days in the month of January 2020 for the purposes only of travel to Thailand.

11. That order provided for certain conditions to apply in respect of the proposed travel arrangements.  One of them was the provision of information in respect of the itinerary, including airline flight numbers, times of departure and other information in terms of where the children would be by way of accommodation.  The second, that upon the return of the mother, she would confirm in writing, via her solicitors, of her return.  The third was that there was a sum of money totalling some $40,000 which remained in her solicitor’s trust account.  And fourthly, that other than the purpose of the 14 days of proposed travel, the mother be restrained from removing the children from the Commonwealth of Australia.

12. A further condition arose in respect of the involvement of the maternal grandmother accompanying the children on all flights to and from Australia and Thailand. The order of 23 October 2019, was further considered on 20 December 2019 when orders were made pursuant to s 65L of the Act, and further orders of the involvement of the maternal grandmother.

13. On or about 15 January 2020, the solicitors for the paternal grandmother sought confirmation from the mother’s solicitors that the children had returned, consistent with the itinerary of travel.

14. It may be that the father, and indeed the paternal grandmother, had earlier information or advice that all was not as it should be, and I refer to paragraph 54 of the paternal grandmother’s affidavit sworn 20 January 2020, wherein it is suggested that the maternal grandmother did not travel with the children from Thailand to Australia, either on 14 or 15 January 2020.  A response was received by the solicitors for the paternal grandmother from the mother’s solicitors, that they were awaiting instructions from their client.  On 17 January 2020, the mother’s solicitors provided correspondence which advised:-

    We have now obtained instructions from our client who advises she is no longer in Thailand.[1]

    [1] Affidavit of Ms Halstead filed 20 January 2020 at [58].

15. There was obviously a request as to what was intended by that remark, and the matter crystallised on 17 January 2020 at 2.26 pm, when the mother’s solicitor sent further correspondence which stated:-

    We write to clarify for you that our client’s instructions are also that she cannot return to Australia as she is scared for her life and her children’s lives.[2]

    [2] Ibid at [60].

16. There are other aspects which would heighten the Court’s concern that it is at least a reasonable assumption that the mother’s present intention is not to return the children; to the jurisdiction.  The issue is serious, not just because there is a possible contravention of orders, but also because the matter has been listed for final hearing on 20 April 2020 in respect of the competing applications of the father, the paternal grandmother and the mother. The mother’s solicitors are not in a position to be able to assist at this stage as to the intentions of their client. 

17. I am satisfied that the mother is aware of these proceedings.  I am not satisfied as to the extent of the documentation that she has been provided with, but I am confident that she is aware of the nature of the proceedings and that they arise generally in respect of a contention by the father and the paternal grandmother that the mother has failed to return the children to the Commonwealth of Australia.  The best information and evidence that is available that indicates the mother’s present intention, is that she is not intending to return the children to the Commonwealth of Australia.

18. In those circumstances, I propose to deal with the Applications for Contempt and Contravention by adjourning them for hearing on 17 February 2020, listed for two days.  I pause at that point to note that Mr Lindsay has foreshadowed that there is awaiting his consideration and settlement, an Application in a Case, with an affidavit, that will seek orders that may well be broadly in alignment with those sought by the paternal grandmother, but may also expand the circumstances somewhat. 

19. I am not in a position to know what those orders are, but I am satisfied that if the application is filed by 4.00 pm on Friday, being 24 January 2020, it should be listed for mention on 17 February 2020.  My primary focus, unless I am diverted from that, would be the hearing of the Contravention and Contempt Applications.  I then return to the substantive application of the paternal grandmother.  There are a number of issues that have been raised, and I propose to deal with them individually, but in relatively short compass.

20. The first is an application in paragraph 3, which is a recovery order pursuant to s 67Q of the Act. I can indicate that I am prepared to make such an order. I consider that in the circumstances of this case, it is important that the children are returned to the jurisdiction. It is important that the Court understands their circumstances, and that the proceedings listed for hearing to commence on 20 April 2020, if at all possible, be retained in order to bring to conclusion this complex set of proceedings. The decision of Rice & Asplund (1979) FLC 90-725 is a decision often used in circumstances where the Court has to determine whether either at a preliminary stage or at a later stage, the litigation should be further continued or re-instituted, the gravamen of the decision is that litigation is almost never in the interests of children.

21. This case, as is apparent to the parties, but also in previous decisions and judgments, needs to be resolved expeditiously.  The circumstances for these children are grievous, and accordingly, I consider that a recovery order should be made.  I am being asked to make an order for a warrant for the arrest of the mother.  At this stage, I am not going to do so.  The warrant is to issue in respect of the Marshal and Officers of the Australian Federal Police.  Whilst it may be a matter of semantics, I consider it premature for a warrant to issue in circumstances where the mother may, in fact, not be in the Commonwealth of Australia, in which case the warrant is unlikely to be able to be executed.  And I am not told that there is any advantage that would assist in the recovery of the children.

22. Paragraphs 5 to 9 inclusive seek an order that would place the care of the children with the paternal grandmother.  By reference to the affidavit of the paternal grandmother of 20 January 2020, commencing at [81], the paternal grandmother sets out in some significant detail her capacity to care for the children.  The circumstances of the father is obviously problematic, not in the sense of any difficulty he has relating to his involvement with the children, but the circumstances in which he finds himself, is such that at this stage and on a preliminary basis, I would not be in favour of the children living with the father.  But I do consider that the circumstances of these children’s lives need to be regulated, and if indeed it shall turn out that the mother does not return in a timely fashion, then it seems to me appropriate that the Court should give consideration to where there might be a stable arrangement.

1. At present, I am satisfied that the most stable arrangement for the children would be with the paternal grandmother.  That order will, of necessity, be of narrow scope in that it will apply during the period of the adjournment in circumstances where the mother may return.  If however, the mother does not, and more information is provided, it may be that the order would warrant longer application.  I do not consider at this stage that it is necessary that I give consideration to whether the Court should order parental responsibility, but I am also of the view that by making the order, it resolves a difficulty that is expressed in the papers, and that is, that if the children are found to be in a Hague Convention country, or at least a country that is a signatory to the 1980 Hague Convention[3] (“the Convention”) as opposed to the 1996 Convention,[4] then it may well assist in terms of the application of the Convention if an order is made that underpins a right of custody.

   [3] Convention on the Civil Aspects of International Child Abduction, opened for signature 25 October 1980, 1343 UNTS 89 (entered into force 1 December 1983).

   [4] Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, opened for signature 19 October 1996, 2204 UNTS 95 (entered into force 1 January 2002).

2. I propose to make that order, and I propose to make an order in terms of paragraphs 5, 7, 8 and 9.  I am prepared to make an order in terms of paragraphs 10 to 14 inclusive, noting that there is an oral application by Ms Lewis of counsel that the organisations to whom the location order will initially refer, at present described or indicated to Centrelink, will be expanded to include the Australian Border Force and/or Department of Home Affairs.  I note that in the notation to the location order, confirmation is obviously to be sought from Centrelink, Medicare, NDIS and the Australian Federal Police in any event.

3. I decline to make an order in terms of both paragraphs 15 and 16. In terms of paragraph 16, I do not consider that that is a proper purpose and focus for s 69ZW of the Act. In terms of paragraph 15, I am told – and I accept, that paragraph 15 is not to be considered as part of the location order. On that basis, and by reason of the inclusion of Australian Border Force and/or Department of Home Affairs in proposed order 10, I do not propose to make any further order that relates to Mr B, Ms W or Ms O, in terms of their travel records. That does not mean that their travel records may not have some relevance to the proceedings. I suspect that they probably would. I do not consider however, that I have jurisdiction to be able to make that order.

4. If however, the position is that a subpoena is to issue, then I would give ready consideration to a subpoena being expedited in terms of the time for service and the production of documents, provided that the Court was satisfied that no embarrassment would be caused to either the Australian Federal Police or the Australian Border Force or Department of Home Affairs, if a subpoena is so issued. At this stage, I do not propose to make an order in terms of a publication order. Firstly, I think it is premature to make such an order. It must be remembered that there are reasons why s 121 of the Act is prescriptive in respect of the extent to which, in the ordinary course of events, information which might identify children, particularly to parenting proceedings, is considered an important and overarching consideration necessary to protect children.

5. The entire tenor of s 121 of the Act and indeed other sections of the Act, is to ensure that the identity of children are kept anonymous and not the subject of public scrutiny or discussion. It is only in what I consider to be exceptional circumstances that the Court should deviate from the general purpose of s 121 of the Act. It may well be that this case will present such a circumstance, but at this stage I do not consider that it does. Were the children to be recovered, with the whereabouts of the children to be better known, I consider the potential utility of s 121 of the Act to be better able to be considered. It is not therefore an application that I propose to deal with at this stage. And equally, I do not propose to make orders in terms of 18, 19, 20 and 21.

6. I am not dismissing the application but simply indicate that at this stage the making of those orders is premature.  I do not consider it necessary that Ms BB produce a report of her observations of the interactions between the children on 30 and 31 December 2019 in circumstances where I consider that the primary relief to which that order would normally be directed, is going to be made in favour of the paternal grandmother.  I do not consider at this stage there is any advantage to the proceedings in an order being made to that effect.

7. Paragraph 23 relates to the order made on 23 October 2019 that required the sum of $40,000 to be retained in the trust account of Mellor Olsson.  The purpose of that security was specifically as a condition of the intended travel by the mother, and was intended to represent both an incentive to the mother to return the children to the jurisdiction and also to assist the father and/or in this case the paternal grandmother, to pursue an application as may be necessary, to ascertain the whereabouts of the children and have them returned to the jurisdiction.  The Court is assisted by the attendances of Ms Pyke QC and her instructing solicitor, and there are no submissions made in opposition to an order being made in terms of paragraph 23.

8. In terms of paragraph 24, I can understand at this stage why the application is framed in that way, and ultimately this may be a case where the Court will determine that the transcript should be obtained for and on behalf of the parties, but at this stage I do not propose to do so, other than to make an order that the Adelaide Registry Manager do all things necessary to make available the audio transcript of the proceedings. 

9. I make the following orders as appear at the commencement of these reasons.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 22 January 2020.

Associate: 

Date:  6 March 2020