HENTY & SULLVIAN

[2013] FamCA 385

FAMILY COURT OF AUSTRALIA

HENTY & SULLVIAN [2013] FamCA 385

FAMILY LAW – ORDERS – CONTRAVENTION – Allegations unclear and imprecise – Dismissed.
FAMILY LAW – CHILDREN – Parenting orders – variation of final orders less than 12 months old which are problematic because of interpretation – orders altered.

Family Law Act 1975 (Cth)

APPLICANT: Mr Henty

RESPONDENT: Ms Sullivan

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 738 of 2010

DATE DELIVERED: 11 April 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 11 April 2013

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

1. That upon being satisfied that there was no evidence to support the allegations in the contravention application filed by the father on 21 February 2013, the contravention application is dismissed.

2. That paragraphs 3(b)(i) and (ii) of the orders made on 22 June 2012 are varied as follows:

   (a)    the Wednesday/Thursday time between the applicant and the child S shall be from 12.30pm on Wednesday to 10.00am on the following Thursday commencing on Wednesday 17 April 2013; and

   (b)    the alternate weekend time shall be from 3.45pm on the Friday to 5.00pm on the following Sunday commencing on Friday 12 April 2013.

3. Immediately upon the mother receiving a Russian passport for the child S born … December 2008 she provide to the father a full photocopied copy of that passport.

4. That the application of the mother filed 30 January 2013 and the response thereto by the father filed 21 February 2013 in relation to final orders (save as to those that have been dismissed) are adjourned to a date to be fixed for final hearing before a judge.

5. That the reasons this day be transcribed and be made available to the parties.

6. That otherwise all interim applications are dismissed.

7. That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 738 of 2010

Mr Henty

Applicant

And

Ms Sullivan

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This is a contravention application by Mr Henty against Ms Sullivan filed on 21 February 2013.  It makes two allegations.  These allegations arise out of an order of the Court made on 22 June 2012.  Those orders were orders of the Court and not to which the parties consented.

2. On the occasion of the orders being pronounced, the applicant in this contravention application was represented by a lawyer. 

3. The application seeks that the mother be dealt with for two breaches of the orders. 

4. The first allegation, which originally was pleaded as a breach of paragraph 3(b) of the orders, I have allowed to be amended to paragraph 10 because otherwise it does not make sense.  Paragraph 10 of the orders of 22 June 2012 relates to the parties being injuncted from removing, attempting to remove or causing or permitting the removal of the child of their relationship from the Commonwealth of Australia. 

5. Paragraph 1 of the contravention has three paragraphs of a statement of alleged contravention and, quite frankly, I have no idea what is alleged other than the fact that it is the ramblings of someone who is very concerned about his daughter.  To the extent that it alleges a breach of paragraph 10, I cannot see it.  I have read the affidavit that supports the application and that does not take the matter any further.  On that basis, the first of the two allegations is dismissed.

6. The second allegation is that on 31 January 2013 at 11 am at the X Police Station, the mother breached paragraph 3(b) of the orders.  Again, the statement of the alleged contravention does not take the matter much further other than it sets out a variety of conversations which took place from late November onwards up until that date.  That synopsis is covered by the affidavit material, most of which seems to be the replication of various electronic communications between the parties. 

7. Paragraph 3(b) of the order reads that the applicant’s time is as follows:

   Upon the start of the 2013 school year:

   (1)Each week from the end of kindergarten Wednesday to the start of kindergarten Thursday.

   (2)Each alternate weekend from the end of kindergarten Friday to 5 pm Sunday.

   The third provision in paragraph 3(b) relates to relevant school holidays and therefore is not important in this application. 

8. 31 January 2013 was a Thursday.  Nothing in paragraph 3(b) mentions a Thursday at 11 am at the X Police Station.  In respect of both of the contraventions, the mother denies any breach and I cannot understand what the breach is that is alleged.  That allegation is also dismissed.

RECORDED  :  NOT TRANSCRIBED

1. I am now dealing with, effectively, three applications for orders.  The first application in time is that filed by the mother on 30 January 2013.  The substantive application seeks two orders.  The first is that the orders made by Dessau J on 22 June 2012 be varied.  The second is that the mother be allowed to take S, (“the child”), who is now just over four, to Russia at least once a year for a one-month period.  I am conscious of the fact that the applicant is not legally represented and certainly seems to have misunderstood the process, but on any view there is no interim order sought.  The mother made it clear that she has no immediate need to go overseas and would certainly like to do so.  This was a contested hearing in June 2012, or earlier, and that issue should have been dealt with at that time.

2. The only order therefore that I should make in respect of overseas travel is that the issue be referred to the trial list and be dealt with in due course. 

3. The first order relating to the variation of the orders seems to arise out of some confusion as to exactly what the orders should mean.  It would appear that Dessau J in June was contemplating that the child would be starting kindergarten at the start of the school year.  What I have been told is that the child will be starting kindergarten a little later this month.  I propose to resolve that issue.

4. The second set of orders sought arises out of the response by the father filed on 21 February.  The interim orders he seeks are extensive, but underlying all of those, is a fear that he has that there is a risk of his daughter being removed to Russia.  On the evidence that I have read, I would not draw that conclusion.  His primary affidavit, which was filed with the contravention now dismissed, has a number of paragraphs.  The first refers to a text message on 11 December 2012 which was to him from the mother.  I would not conclude that the mother was saying she was going to take the child to Russia.

5. The affidavit goes on to say that on 2 January 2013 the mother sent him an email concerning care and schooling arrangements.  In that, she mentioned documents relating to Russian citizenship but that they would not be ready for some months and she would inform him once that was done.  The latter is something that he does not accept will occur, but the mother today has agreed that immediately upon receiving the documents she will provide a copy of the passport to him. 

6. The affidavit then goes on to say that on 3 January the mother sent him another email which seems to suggest that the child was entitled to her Russian heritage which includes culture and language. Section 60CC of the Family Law Act 1975 (Cth) (“the Act”) requires a court, when making a decision in the best interests of a child, to give serious contemplation to the child’s right to participate in her culture.  The January email was a complaint by the mother about the fact that the applicant father seemed to be ignoring that the child was half Russian.  To the extent that that would suggest that the mother was going to run away to Russia, I would not so conclude.

7. On 24 January the mother sent a text message saying that she and the child were not going to Russia “illegally”.  Indeed, the email attached to the affidavit of the father supports that assertion.  Again, I would not be prepared to conclude that the mother has any intention to do what is alleged.  The affidavit then refers to the fact that the lawyers for the father were sending letters and were not getting much response.  I do not know where that takes the matter.

8. The affidavit then refers to the fact that the mother was not arranging for the child’s permanent “kinder” and schooling.  That would seem to be the case.  But, in any event, the father has to overcome the fact that for whatever reason, on 22 June 2012, Dessau J made an order that the mother have sole parental responsibility for the major long-term decisions associated with the child’s life. 

9. The definition in the Act concerning major long-term decisions includes education. I conclude that her Honour has given the mother that responsibility. The affidavit then makes mention of the breaches of various orders which included references to matters prior to the orders of June 2012. Her Honour no doubt took those matters into account when she made the orders on 22 June.

10. Finally, the father points to a statement from an unidentified Australian Federal Police source that said that they could not guarantee the prevention of the departure of the child if she had a different surname to that on the birth certificate and the mother’s maiden name.  The father has made much of that today indicating that that was the best information he could get.  I am not at all convinced that that is exactly what is being said.  As is well known, the responsibility for what is known as the airport watch list system is the responsibility of the Department of Immigration.  The Australian Federal Police certainly police it, but it is the responsibility of the department to indicate what they can and cannot do. 

11. I note that if the father has accurately reported his unnamed source, then all the department would have been saying is that they could not guarantee that the airport watch list would pick up the child.  I am not sure that is right either, having regard to the fact that a Russian passport would not necessarily entitle the child to leave Australia.  When I look at all of that evidence, I can understand the father’s frustration and even fear, but there has to be some form of evidence to indicate that there is a risk, as distinct from a suspicion, that the mother is going to do something contrary to the law, let alone the child’s best interests.  I could not be satisfied that that is the situation here.

12. That being so, I turn back to the orders that the father seeks. His application proposes an order that he be given “full custody” of the child temporarily until the mother provides the relevant Russian citizenship documents and that they can be confirmed by the Russian consulate and served on the Australian Federal Police. Bearing in mind what I have just said, his fear would not be a sufficient foundation for a variation of the parenting orders under Part VII of the Act. Dessau J looked at the whole of the case and made a final determination.

13. When a court makes a final determination, it is in the child’s best interests that the litigation is concluded unless there is a very good reason to reopen it.  Nothing I have heard today would justify reopening the parenting orders such that the child should live with her father.  I say that particularly having regard to the fact that Dessau J made orders in June 2012 which were, to say the least, very restrictive of the father’s time.  I must conclude that her Honour took the view that it was in the best interests of the child that there was not to be a very significant sharing of the child’s time.  To therefore simply pluck the child out of the environment where she has been living and give her to the father would seem to fly in the face of the orders of Dessau J in 2012.

14. Importantly, section 60CA of the Act provides that, when making a parenting order, the court must consider the best interests of the child as the paramount consideration. There is no evidence before me that would enable me to make any findings under section 60CC of the Act. All of the evidence that the father relies upon is his fear that the mother is going to take the child to Russia. Having made the determination that I could not draw that conclusion, the application for the variation of the orders, in the way he has put it, cannot succeed.

15. I turn then to the rest of the orders that he seeks.  There is a significant debate in this case about the wording of paragraph 3(b) of the orders of June 2012.  It is quite clear that her Honour was anticipating that the child would be attending kindergarten this year and presumably from the start of the 2013 school year.  The orders make reference to “school year” and, indeed, “kindergarten”.  None of those things really matter because what her Honour was clearly talking about was the start of the 2013 year when children go to school and that must be at the end of January or early February.

16. The problem with the orders is that the temporal connection is unclear because the child is not attending kindergarten.  The logical conclusion is for me to substitute the relevant times with certainty for the parties’ and the child’s sake that would have otherwise been operative had, indeed, she gone to kindergarten in 2013.  Whilst there is some dispute about the precise times, I think it is in her best interests that the 3(b)(1) order be varied to read from 12.30 pm on the Wednesday until 10 am on the following Thursday morning and that 3(b)(2) be altered to read from 3.45 pm on the Friday through to 5 pm on the Sunday.

17. The final order that the father seeks is that he organise and pays for a school readiness assessment by a qualified psychologist and assessor effectively to determine the appropriate entry into school for the child.  It would not be appropriate for me to make that order on an interim basis having regard to the fact that the Court on 22 June 2012 made a final order that the mother have sole parental responsibility.  I must conclude, as a matter of law, that on that date her Honour contemplated that for the entirety of the child’s childhood the mother was to have the sole responsibility for making decisions about such things as health and education. 

18. I have not read her Honour’s reasons and I do not know why that order was made, but it is unusual and in those circumstances another court must be very cautious about altering it.  The father’s argument is that the mother is not parenting appropriately and he says it is not in the child’s best interests for that to occur.  I should not interfere at this stage whilst the order for sole parental responsibility remains and, indeed, the father has not sought an interim order that I discharge her Honour’s orders.  He also confirmed that he had not appealed against the orders even though he may have contemplated doing so.  On that basis, I could not make the order in terms of paragraph 7 of his application.

19. The third and final set of orders sought relates to an application in the case filed by the father on 28 March.  There is a certain overlap between some of the orders that he there seeks and what I have just dealt with.  Most of what he seeks relates to the airport watch system and the mother providing him with information.  For the reasons I have already outlined, it is not appropriate that I make those orders in the terms that he has sought.  I am certainly prepared to order that the mother provide to the father a copy of the Russian passport in full upon receipt of it from the relevant authorities.  What he then does is a matter for him as to whether he sees a need to vary the airport watch order, but on the basis of what the mother has said, and albeit it’s not in evidentiary form, I would be somewhat surprised if there is a basis to vary the order on that information.  Accordingly, I will make the following orders.

ORDERS DELIVERED

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 11 April 2013.

Associate: 

Date:  24 April 2013