Hartnett and Sampson (No. 5)

[2007] FamCA 411

FAMILY COURT OF AUSTRALIA

HARTNETT & SAMPSON (NO. 5) [2007] FamCA 411

FAMILY LAW - CHILDREN – Recovery Order - Airport Watch List

Family Law Act 1975 (Cth)

APPELLANT: MR HARTNETT

RESPONDENT: MS SAMPSON

FILE NUMBER: SYF 3827 of 2004

DATE DELIVERED: 4 May 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: JR Loughnan

HEARING DATE: 4 May 2007

REPRESENTATION

SOLICITOR FOR THE APPELLANT: The father in person

SOLICITOR FOR THE RESPONDENT: Paul & Paul, Lawyers

INDEPENDENT CHILDREN’S LAWYER Legal Aid Commission of New South Wales

Orders

1. The proceedings are adjourned to before Judicial Registrar Loughnan at 10:00 am on Friday, 11 May 2007.

IT IS NOTED

1. That notwithstanding the adjournment of these proceedings the mother should establish the children in a residence in Sydney by 13 May 2007.

IT IS FURTHER ORDERED

1. Any documents on which the mother seeks to rely be provided to the Independent Children’s Lawyer and to the father not later than 12 noon on Thursday, the 10th day of May.

2. The documents can be provided to the father by e-mail AND the Court noted that the father’s e-mail address is … .

3. Until further order each of the parties is restrained from removing or causing or permitting the removal of the children a daughter born in April 2003 and a son born in November 2004 from the Commonwealth of Australia and that the Australian Federal Police place the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia AND the Court requested the assistance of the Australian Federal Police in the implementation of this order

FAMILY COURT OF AUSTRALIA AT SYDNEY

File Number: SYF 3827 of 2004

MR HARTNETT

Appellant

And

MS SAMPSON

Respondent

REASONS FOR JUDGMENT

1. The background to this is exhaustive and exhausting litigation which culminated in a final hearing conducted over a number of dates starting the 11 May last year and concluding on 4 December 2006.  That resulted in orders made on 21 March 2007 in relation to property and parenting issues. 

2. An application before me by the father seeks a recovery order and a watch list order.  The application was listed on short notice. The father is here, the mother is represented and the children are represented. The father, has sought and been granted leave to file an amended application.  The amended application seeks a variation of the final parenting orders consequential on a breach of those orders and I accept that the mother needs time to address the detail of the proposals.

3. At the same time, I understand that there has been an appeal lodged in relation to the substantive orders and an application has been made to expedite the hearing of that appeal. In addition an application was made to the trial judge on the 27 April 2007 for a stay of aspects of the substantive orders particularly in relation to an order requiring that the residence of the children established in Sydney. That application was refused on 30 April 2007. I understand that there is now an appeal in relation to that order.

4. In the meantime, the father notes that the mother’s solicitor has brought to his attention the fact that in the event that the mother did not cause the children to have a residence established in Sydney by the first of May, the parenting orders are silent in relation to the children living with or spending time with him.  I understand that the mother has more recently proposed that the father have the sort of time that he would have with the children under the orders in Sydney, by the mother delivering the children to him for the upcoming weekend.

5. There is no consent but no objection to the watch list order, and I will make the order. I remind the parties to be vigilant about that order. Such an order can remain on the records of the Customs department and then one day the parties agree on overseas travel for the children and will find that the trip is frustrated by the fact of the watch list order.

6. The other thing to say is that there are still proceedings on foot and it is an offence to take a child out of the jurisdiction without the written consent of the other party. This order is in aid of that provision.

7. As to the matter generally, the father has asked me to look at the reasons for judgment given in the substantive proceedings. It said on behalf of the mother, there is an ambiguity about the orders and there is a real issue as to whether her Honour intended that it was an essential component or critical component of the orders she made that the children’s residence be established in Sydney by 1 May. It is also submitted on behalf of the mother that there was a facilitative order providing for a payment of $12,000 by the father to the mother in advance of that move and that order was not complied with.

8. From my point of view I need to make it clear why I am adjourning the matter to another day.  I should first make it clear that I cannot entertain an application for a stay of the orders. That issue should be determined by the trial judge and the trial judge has made a determined that application. Unless fresh circumstances arise the trial judge is functus officio. The only other source of a stay would be the Full Court. They are the only two avenues in the normal course.

9. I do however have power, and this is the father’s application, to enforce the orders. In my view it is not possible to read the terms of the orders and the reasons for judgment to mean anything other than the children were to live in Sydney from 1 May 2007.  The mother currently lives in Geelong and the father, in Sydney. In her Honour’s judgment at para.109 her Honour summarises the competing proposals. She finds that in effect because of his son J and for some other reasons it is not practicable for the father to move to Geelong, where the mother lives. In relation to the mother, her Honour notes that she does not want to move to Sydney because she has the support of her family in Geelong, among other reasons.  Her Honour says:

   If that is to remain their positions, then the children’s best interests require that they return to live in Sydney where they will have a better opportunity of their father’s involvement in their lives and have time with their mother in Sydney and in Geelong at times.

10. The second reason why I am confident about that is that the orders do not contemplate any other outcome.  True it is that the device used in the orders is that “at all other times the children live with the mother”, but the orders do not contemplate any outcome other than the children being relocated to live in Sydney. By inference the orders only address the situation where the mother is in Sydney. In terms of my obligations to enforce the orders, it seems to me, that is the clear intent of the orders.

11. I accept that an order was made for the payment of money and I accept that that order was not complied with. Each of the parties blames the other about this. Mr Paul, for the mother, says that ultimately there was a communication between himself and a solicitor who had a right to intercept any moneys paid to the mother in the compass of these proceedings. He says he made contact with that solicitor and some accommodation was reached, so that the father could effectively pay the $12,000 to the mother. Mr Paul submitted that the problem was one for the father to sort that out. I do not think that is right. The parties are equally obliged to comply with court orders and this was a problem that the mother and her solicitor were uniquely aware of. I am told that Mr Paul himself witnessed the authority under which the mother’s former solicitor could intercept funds paid to her. Therefore at all relevant times he knew of the authority and the mother knew that she had given the authority.  So, it is not fair to say that it was the father’s responsibility. There was an order that he pay $12,000 to the mother. If the mother she knew of a reason why that order would not be effective then she was obliged to take action to cause any impediment to be removed.

12. Nevertheless, in terms of enforcement I think a practical approach would be to carry through the thrust of her Honour’s decision and that was a decision made on 21 March 2007 which required the payment within a month.  Therefore by 22 April 2007 the mother was to have $12,000. The orders required that by 1 May 2007 she was cause the children to be established in a residence in Sydney. Therefore the mother was given nine days from the date of payment to the date by which the residence was to be established. It seems to me that the logic would be nine days after mother has the funds she should establish the residence.  I am told that there is no further step the father needs to take to alienate the funds and subject to the dealings with a negotiable instrument by the bank, the money is in the mother’s hands. Therefore in nine days from today, the mother should have established the children’s residence in Sydney. She is not allowed to suspend her compliance with the orders on the basis that she is asking for a stay of the orders. She is not allowed to suspend her compliance with the orders because she and the father have not yet come to terms with the consequences of her earlier failure to comply with the orders.

13. So in my view, and subject of course to the Full Court intervening or some other decision being made, by 13 May 2007 the mother should be in the same position she was required to be in under the orders and the living arrangements described under the orders would then apply from that date. It disingenuous for the mother to suggest that there is any doubt that, as a minimum, the children should be with the father for the times provided for under the orders. The flavour of her Honour’s judgment is that a significant blind spot in the mother’s parenting responsibility in relation to these children is her incapacity to facilitate a relationship between the father and the children. Everything I hear in these proceedings whenever they come before me confirms that observation. It is not for the Court or the father to rectify the problem created by the authority given by the mother in relation to the payment of money, or to take the running in arranging the father’s time with the children given that the order that they live in Sydney has not been complied with. The community has put a lot of investment in these proceedings. Her Honour observes that the parties have expended a disproportionate and inappropriate amount of money in the proceedings. It is time to move on. 

14. I am happy to cooperate with the parties in relation to the adjournment sought. I agree that unless it is as simple as the mother coming to live in Sydney with the children, then changes will be needed to the orders made by her Honour.

15. So there is job of work to be done and again, it has been left to the father to come forward with the only suggestion about that.  I repeat, he is not the only person responsible for causing the orders to be complied with. I accept that there are issues in relation to the best interests of the children arising from the way in which the orders should be enforced. The father acknowledges and the mother says through Mr Paul, she understands, that the court is always going to be reluctant to issue a recovery order which authorises the police to collect the children.

16. For those reasons, I adjourn these proceedings to my list at 10 am on 11 May 2007 and I note that there is nothing in my view in the adjournment of these proceedings that should prevent the mother establishing the children in a residence in Sydney by 13 May 2007.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Loughnan JR

Associate: 

Date: 

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as HARTNETT & SAMPSON