Hartnett and Sampson

[2007] FamCA 1743

FAMILY COURT OF AUSTRALIA

HARTNETT & SAMPSON [2007] FamCA 1743

FAMILY LAW – CHILDREN – live with – spend time with – stay of orders.

Family Law Act (Cth) 1975

APPLICANT: Mr Hartnett

RESPONDENT: Ms Sampson

INDEPENDENT CHILDREN’S LAWYER: Ms Eva Karagiannis

FILE NUMBER: SYF 3827 of 2004

DATE DELIVERED: 11 May 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 11 May 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Father in person

SOLICITOR FOR THE RESPONDENT: Paul & Paul Lawyers

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Legal Aid Commission of NSW

Orders

1. The children k born … 2003 and T born … 2004 live with the father until further order of the Court.

1. During the period the children live with the father pursuant to that order they live with the mother in Sydney for the periods provided for them to live with her pursuant to orders made by this court on 21 March 2007 until further order.

1. Subject to any further orders of this Court including the Full Court the operation of these orders be stayed until 12.00 noon on the 8^th day after the date of the hearing of the appeal before the Full Court in relation the refusal of a stay of the orders made on 21 March 2007.

.

IT IS NOTED that publication of this judgment under the pseudonym Hartnett & Sampson (No. 12) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3827 of 2004

Mr Hartnett

Applicant

And

Ms Sampson

Respondent

REASONS FOR JUDGMENT

1. I am dealing with an application by the husband which is an amended application filed on 4 May 2007. The operative orders sought are that the children K and T live with him in his home in Sydney until the relocation of the mother to Sydney.

2. He seeks a further order that he be required to make the children available, in effect, to spend time with the mother in Sydney, in accordance with the orders that were made by this court on 21 March this year.

3. He seeks that the mother be restricted from then removing the children from Sydney or New South Wales without the written approval of the father and he says that approval should not be unreasonably withheld. He seeks an order that the mother provide evidence to him of establishing a residence in Sydney.

4. The mother opposes those orders. 

5. The father is here in person.  The mother is represented, and the children are represented.

6. The mother seeks a number of orders by way of response ‑ not all of them are pressed today. She seeks an adjournment of these proceedings until after the determination of an appeal against the refusal of a stay of the final parenting orders made on 21 March 2007.

7. In the event that that order is not granted, and pending the determination of the appeal, the mother seeks that she have exclusive occupation of the property she describes as the former matrimonial home, except for the times when the children are to be with the father. She proposed an arrangement whereby she and the father come and go, and the children remain in the home.

8. She seeks an order for variation of spousal maintenance pending the determination of the appeal, to $1000 per week.  She seeks a child support departure to $465 per week, with effect from the time the mother resides in rented premises in Sydney, and she seeks costs.

9. The key issue is whether the father’s enforcement application should be determined prior to the determination of an appeal against a refusal of a stay of orders made on 21 March 2007. The thing that agitated the father and, that agitated me, is that in one sense, I am being asked to grant the stay that was refused by the trial judge.

10. All of this occurs in the background of a case where the mother and the eldest child, K, were established in premises in Victoria following the parties’ separation a few years ago. The father continues to live in Sydney. The child T was born after separation. The father has managed his relationship with the children by regular travel to Victoria. 

11. The parenting arrangements were finally settled in final orders made on 21 March 2007 after a defended hearing. By those orders the mother was required to establish the children in a residence in Sydney by 1 May 2007. The father was ordered to pay spousal maintenance that was to be capitalised for a period of six months at $12,000. That payment was to be made within a month of the orders.

12. The matter came before me on 4 May 2007 on the father’s enforcement application. I was told that the $12,000 had not been paid within one month of the date of the orders. It transpired that there was an arrangement in place between the mother and her former solicitor, whereby that solicitor had the authority to intercept payments made to the mother, for the purposes of recovering legal costs. I think the sequence of events was that albeit after the date the orders were made, the mother’s solicitor advised the father that the arrangement existed. Albeit after the date the payment was due, the mother's solicitor ultimately arranged for some relaxation of that authority, thereby enabling the wife to receive the payment of $12,000. The father held off making the payment because he was told it was not going to be effective and the payment was not made by 22 April 2007.  I think it was made by about 3 May 2007, or a bit before that.

13. When the matter came before me on 4 May, the father's amended application was recently on foot and by that application he sought a substantive variation to the orders of 21 March 2007. By his initial enforcement application he sought a bare recovery order. He then realised that other orders were needed because the regime proposed in the orders of 21 March 2007 was not in place. The late variation of his application meant the mother needed a further opportunity to address the application. That resulted in an adjournment of the proceedings to today.  I gave some reasons for that adjournment on 4 May. I observed on that date that the orders of 21 March 2007 provided for the mother to have something like nine days after the payment of $12,000 before she had to establish a residence for the children in Sydney. In effect, her Honour's orders appeared to make the $12,000 payment a condition for the mother establishing the children in Sydney. It is clear from her Honour's judgment that the $12,000 payment was intended to assist the mother establish a Sydney residence.

14. I noted on 4 May 2007 that by 3 May 2007 there was nothing else the father needed to do to alienate the funds and therefore by 13 May the mother should have established the children in a residence in Sydney.

15. The matter comes on today and the mother she says that she had been making some inquiries to try and secure a residence, although rather alarmingly, and consistent with other observations that have been made in the case, she says:

    Since I arrived in Sydney Friday last, I've been actively engaged in speaking to real estate agents and searching for appropriate accommodation for the children and myself in the event that my appeal against the refusal of a stay should fail

16. So my pathetic attempt at signalling to the mother that her obligations under the orders continued, and she was still obliged to comply with the orders made on 21 March, failed magnificently.

17. In the meantime, the matter came before Warnick J, a Judge of the Full Court, on 9 May 2007 and the matter has been listed some time in the week of 28 May 2007 but only in relation to the appeal against the refusal of the stay. The substantive appeal will be dealt with at a later time.

18. It transpires that the mother has not caused a residence to be established in Sydney for the children and, given the evidence referred to above, she did not try to do so.

19. The orders that her Honour made are not self‑executing orders.  It was open to her Honour, for example, to make an order that in the event that the children were not established in Sydney by 1 May, that they live with the father.

20. Indeed, talking to the parties and representatives today, I cannot see any other way of enforcing the order.  The Court's power under Part VII relates to children, and her Honour's orders reflect that.  The mother is not required to live in Sydney, she cannot be required to live in Sydney. She is free to live in Victoria or wherever she likes. The Court’s power relates to the children.

21. The mother did suggest a nesting arrangement, whereby the parties would share the former matrimonial home.  I asked the father about that today.  To be fair to him, he did not know that was going to be proposed. He reminded me that his son J lives with him from time to time, or substantially. Therefore the father is not free to leave the premises and live somewhere else for most of each week. So that is not going to be an acceptable solution.

22. As I have said, her Honour could have made a self‑executing order. In the absence of such an order there is a need for enforcement.  Enforcement is discretionary. The discretion in relation to the enforcement of a parenting matter will be exercised having regard to the best interests of a child.

23. The children's representative does not support the orders the father seeks.  As I understand it, that is because the mother has said she will comply with the spirit of the orders of 21 March 2007 and will ensure that the children spend time with the father in Sydney as is provided for in those orders. Further, the stay appeal will come before the Full Court in reasonably short order. In addition the mother proposes that the children will, in fact, reside in Sydney from 18 May until 24 May. Those dates straddle two periods of time they are to spend with their father.  So for six days of the time between now and when the Full Court hears the appeal, they will be in Sydney in any event.

24. The independent children's lawyer supports an order for enforcement in the event that the appeal against the stay is not successful.  The father is not interested in that approach as he wants the order enforced immediately.

25. The mother's representative would want to be heard about the way in which the self‑executing order was to be put in place because of her concerns about the Sydney rental market, and the difficulty she will have in complying in the short term.

26. There are some very worrying and competing pressures here.  The father's application is entirely meritorious.  For reasons that I identified on the last occasion, I am not satisfied of the mother's bona fides in relation to these orders.  In part that arises because, as I said on the last occasion, she was uniquely aware of the fact of the impediment to the effective payment of $12,000 yet it was put to me through her solicitor that it was for the father to clear the way for an effective payment. Indeed the problem was initially left to him. That attitude was completely disingenuous.

27. Secondly, notwithstanding that the stay had been refused, there is no satisfactory evidence that the mother did all she could have done to comply with the orders. The matter has proceeded on the basis and indeed she has sworn that she feels her obligations to provide appropriate accommodation will only arise in the event that the appeal against a refusal of a stay fails. That is not the legal position. I attempted to bring that fact to her attention by the notations I made on 4 May. For those reasons I do not have any sympathy for the mother's approach in the proceedings.  The father's application, as I say, is entirely meritorious.

28. The problem is the consequences for the children. Again, through no fault of the father, I just do not know what those consequences will be. The independent children's lawyer thinks that if push comes to shove, the mother will, in fact, move. There must be some doubt in that because if that was the case, then the orders the father proposes will resolve the whole situation.

29. As I say, I am obliged to take into account the best interests of the children.  For good reason or bad ‑ probably bad reason ‑ the fact is that over the last few years the children have not had blocks of time, significant time, with their father.

30. The orders her Honour made on 21 March 2007 did not provide that the children live with the father all the time.  In fact, they provide that the children will live with their mother for more time than with the father.

31. In those circumstances an order that might result in the children having no significant time with their mother will be a very different regime to that fixed by the trial judge. Remembering, the child K is only four years of age, and T is two and a bit.

32. There are competing claims. On the one hand there is an order of the court which requires that the children live in Sydney by 1 May 2007. It has not been complied with, and the only way of enforcing that order, I accept, is the order the father proposes, or some variation on it.

33. As against that, there is a short period until the Full Court decides an appeal against a stay. That is relevant because that will put to an end for the entirety of the period the Full Court takes to hear and determine the substantive appeal, the question of the enforceability of her Honour's orders.

34. We have the need identified by her Honour in the normal course for two young children who have predominantly lived with their mother all of their lives to continue to live with her most of the time.

35. I think the balance to be drawn is a balance whereby the children have the time with their father that was ordered and, in effect, that the order requiring the mother to establish their residence in Sydney, not be enforced.

36. I appreciate another mind might have a different view about it.  As I said a number of times, the father's case is entirely meritorious, and if the mother will ultimately comply then the order the father proposes will have no impact on the children at all. If that order is made then the mother will move to Sydney and everything will be fine. The independent children's lawyer must have some reservations about that.  She's an experienced lawyer and she knows more about this case than I do.

37. Having said all of that, it seems to me that my job is to enforce the Court’s orders. Therefore I will make the orders the father seeks, subject to any contrary order made by the Full Court. Therefore those orders will come into effect seven clear days after the day on which the appeal in relation to the stay is heard. That means that if the appeal is determined with an ex tempore judgment on that date, then the parties will be clear about what the consequences are. If the appeal is granted, the Full Court can make a consequential order setting aside the orders I make. If the appeal is dismissed, then subject to any application made to the Full Court, my orders will be in place. If the Full Court reserves its decision, it will be in a position to contemplate a stay of the operation of the orders of 21 March 2007 (and of my orders) pending judgment.

ORDERS DELIVERED

1. An issue has arisen about the length of time after the hearing date of the appeal for the operation of these orders. I will not extend the period.

2. There is nothing in the mother's evidence as to any inquiries she has made in relation to any other form of accommodation, other than rental accommodation.

3. The orders that her Honour made provided the mother with nine days worth of money, and a significant amount of time to find accommodation.  They do not require her to establish final accommodation or ideal accommodation in that time. The orders do not prescribe any particular type of accommodation. The mother has a number of options. She could make enquiries about accommodation other than rental accommodation.  She could leave the children with the father for some period under some arrangement, or she could find rental accommodation.

4. What I am doing, and I have grave misgivings about for the reasons that I have said, is to give the mother a further seven clear days after the Full Court hearing of the stay appeal, to do what she should have already done. The reality is if the mother wants to find some accommodation then she will be able to do it. It might not be ideal accommodation in the first instance and she may not have her furniture available, so something in the short term would be appropriate. At the end of the day, she has had since 21 March 2007 to deal with these issues.

ORDERS DELIVERED

1. I did not refer to the fact that, in the event that the mother asserts that she has established a residence in Sydney, the father seeks the production of documents to prove that fact. In my view that requirement is demeaning so I will not make any order about that.

2. As to the mother's travel, her Honour specifically contemplated that there would be some time between the children and the mother in Victoria, so the orders speak for themselves. If there is to be some further variation or definition of the orders of 21 March 2007, that is something that goes beyond these enforcement proceedings.

3. I recognise that I have expressed the orders to be until further order and that has the potential to leave things up in the air.  I would sincerely hope that common sense prevails and these orders never have to be carried into effect.

I certify that the preceding forty four (44) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate: 

Date:  22 May 2007