Harley and Donald

[2007] FamCA 1712

FAMILY COURT OF AUSTRALIA

HARLEY & DONALD [2007] FamCA 1712

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments

Family Law Act 1975 (Cth)

APPLICANT: Ms Harley

RESPONDENT: Mr Donald

FILE NUMBER: MLC 6451 of 2007

DATE DELIVERED: 21 June 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 21 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr A.I. Strum

SOLICITOR FOR THE RESPONDENT:

Orders

1. That all questions of costs of and incidental to these applications, together with all questions of the costs of travel pursuant to the orders made on 13 June 2007, whether thrown away or otherwise, be reserved to the trial judge hearing the father's application on form 18 returnable on 4 July 2007 or further order.

2. That all applications for interim orders returnable this day be otherwise dismissed.

3. That all applications for final orders be adjourned to 4 July 2007.

4. Liberty to apply.

5. Certify.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6451 of 2007

MS HARLEY  

Applicant

And

MR DONALD  

Respondent

REASONS FOR JUDGMENT

1. These proceedings concern two children, W, born in December 1996, aged 10 and a half, and L, born in April 2001, aged six.

2. Relatively recently the parties conducted proceedings before a Judge of the Family Division of the High Court of Justice in England seeking various parenting orders relating to the children.  I surmise that the most important issue in those proceedings was the wife's application to relocate to Australia with the children. 

3. The wife succeeded in that application and has since relocated to Melbourne.  She has a partner in Melbourne and they have, I think, two children by that relationship, the younger of whom is a newborn baby. 

4. The orders of the learned judge hearing this matter in the High Court of Justice required the wife and the father to consent to orders in this Court which have been correctly described before me by counsel for the husband as being "mirror orders" of those made by the learned judge.  Those orders were made by consent by a Registrar on 13 June 2007, that is, eight days ago.  They provided for the wife to have residence of the children and granted her permission to remove the children "permanently from the jurisdiction of the United Kingdom to live with her in Australia."

5. Under the heading Contact the father was granted time and communication with the children at various times specified in the orders.  The crucial aspect for present purposes is paragraph 3(d) of the orders in this court providing for the father to spend time with the children:

   For two weeks (excluding travel) during the children's June school holidays, the children to travel to England for the purpose of this contact.

   There are also further provisions for the father to spend time with the children           in Australia, but they are not relevant for present purposes.

1. The school holidays in Australia commence at the end of next week and accordingly give effect to paragraph 3(d) of the orders.  It is submitted on behalf of the father and not challenged by the mother that the effect of the order would be to have the children travelling to England by plane at the end of next week and remaining there for two weeks in accordance with the order. 

2. The order also contains a detailed provision with regard to costs and other circumstances of compliance with the order.  Paragraph 6 of this Court's order which is under the heading Notation is in the following terms:

   In respect of any child support payments which the father is ordered or agrees to pay to the mother, he shall pay the first 250 pounds per month of such payment into a joint account (in England) in the name of himself and the mother, such funds to be released promptly to be used to purchase the return air tickets of the children (and the mother if travelling) to England for the purpose of the contact set out above (and for the avoidance of doubt, the adequacy or inadequacy of the funds in the account any time shall not be a reason for departing from the contact schedule set out below, or the mother's obligation to bring the children to England as set out above). 

3. The application before me today was commenced on behalf of the father which clearly stems from an indication by the mother that she may not comply with the orders.  An application for contravention on Form 18 was issued on behalf of the father out of this Court on 18 June 2007 and is returnable on 4 July 2007.  I note that abridgment of that application was sought and refused.  There is no suggestion that that application will not proceed in accordance with its listing. 

4. Before me today the father has been represented by counsel and the mother has appeared on her own behalf.  It is common ground that she was served with these this application only in the last couple of days and her initial application was for an adjournment to allow her to respond.  She argued that point very strenuously with no material to support it.  That argument took place prior to lunch.  During that discussion which ensued I indicated a tentative lack of sympathy for the mother's position on the basis that any delay would advantage the mother in her apparent desire for the contact not to take place.  While I have not consulted the transcript, my memory of her submission includes the proposition that she did not want her children to travel alone and that she could not afford to travel with them, particularly because of her two children by her present relationship which would effectively require both herself and her partner, together with the two babies to travel with them.

5. After lunch, to my significant surprise, the mother produced a response to the father's initiating application, together with an extensive and carefully drawn affidavit, with large numbers of voluminous annexures, of which she had not informed me prior to lunch.  That alone created a doubt in me as to her bona fides before this court. 

6. As the matter progressed it appeared that she was now submitting that the only bar to the contact taking place on the basis that she did not want the children to travel alone was a question of cost.  I have been informed by counsel for the father, with no disagreement from the mother, that airlines at this time are charging in the vicinity of $10,000 per economy seat return to England, presumably by virtue of the fact that they are the high season fares to be booked at very short notice.  These fares should have been booked a long time ago and in those circumstances again, the efflux of time has operated in favour of the mother. 

7. The present application which was amended over lunchtime on behalf of the father seeks a warrant by way of recovery order for the children to place them on a particular flight departing Melbourne as detailed in that application and seeks that the father cause the children's tickets for the travel to be delivered to the Australian Federal Police at Tullamarine by particularised times.  Paragraph 3 provides that:

   In the first instance, the applicant father pay the costs of the flights for the children and that the issue of the terms and conditions upon which such payment is to be reimbursed to the applicant father be adjourned to 4 July 2007. 

8. I have not yet noted, but on that last date there are property proceedings between the parties in the High Court of Justice in England at which it is assumed the mother needs to be present unless the matter settles. 

9. The mother, in her application in response, seeks a variation in the wording of the orders of this court to create a situation in which the children not be forced to travel unaccompanied and a further addendum to the order stating that the mother shall fund one trip to the United Kingdom for the purpose of contact and the father shall fund another trip to the United Kingdom for that purpose. 

10. These orders have been made as result of a defended trial in the High Court of Justice.  The orders in this Court have been made in aid of the orders in that court and by virtue of the comity which exists between the two courts it would be presumptuous of me to seek to vary those orders in these circumstances.  The whole meaning of the orders in this court appears to me to cover the very situations about which the mother now objects and to which she nevertheless consented only eight days ago in this court. 

11. Accordingly, to the extent that the mother's application seeks interim orders that application will be dismissed.

12. By virtue of the existence of the orders I am not persuaded that given their detail and the circumstances in which they were made and the recent timing of the making of those orders following a defended trial in England that it is appropriate that I should in any way interfere with those orders.  In my view those orders are abundantly clear.  At this stage there has been no breach of the order, although it appears very likely that the mother will breach those orders next week. 

13. There are already contravention proceedings which will consider whether, if there is a breach, that breach has been with or without reasonable excuse and those proceedings will take their course. 

14. In my view it is inappropriate to interfere with those orders in any way whatsoever.  In particular I do not regard it as being in the children's best interests that I engage the Australian Federal Police or any other law enforcement body of this country to effectively arrest the children and force them on to an aeroplane.  Not only is it not in their interests, I find it contrary to their best interests to the very highest degree of probability. 

15. However, lest what I have said be misinterpreted, let me make it absolutely clear that I am not in the least impressed with the position taken in these proceedings by the mother.  She has very recently consented to orders and all the indications are that she is about to breach them.  Again, whether that is with or without reasonable excuse is a matter for another time.

16. However, in those circumstances, save as to questions of costs, both applications will be dismissed. 

17. As to questions of costs, I propose referring those to the judge hearing the contravention application. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate

Date: 20 October 2008