Houston and Houston

[2008] FamCA 635

FAMILY COURT OF AUSTRALIA

HOUSTON & HOUSTON [2008] FamCA 635

FAMILY LAW – CONTRAVENTION—Mother removed children overseas—non-appearance by Mother—warrant of arrest issued to lie in registry—airport watch—costs reserved—orders made.

APPLICANT: Mr Houston

RESPONDENT: Ms Houston

FILE NUMBER: BRC 10248 of 2007

DATE DELIVERED: 21 July 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 21 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Priestley of Counsel appeared for the Applicant Father

SOLICITORS FOR THE APPLICANT: Green & McKay

SOLICITOR FOR THE RESPONDENT: There was no appearance by the Respondent Mother

Orders

IT IS ORDERED THAT:

1. Pursuant to Rule 7.18 service of the Contravention Application filed 18 April 2008 be dispensed with.

2. A Warrant issue for the arrest of the Mother, MS HOUSTON (possibly also known as MS M) a female born … August 1973.

3. The Marshal, all officers of the Australian Federal Police and the State and Territory police forces are ordered to arrest MS HOUSTON (possibly also known as MS M) a female born … August 1973 and bring that person before the Court, or any other court exercising jurisdiction under the Act on the first day on which the Court next sits after the person’s arrest, or as soon as practicable after that date.

4. This Warrant ceases to be in force on 20 January 2009.

5. This Warrant of Arrest is to lie in the Registry with the Father to be at liberty to apply for the Warrant to issue forthwith upon the Father becoming aware the Mother has returned to the Commonwealth of Australia.

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The Mother, MS HOUSTON (possibly also known as MS M) a female born … August 1973 and her servants and agents are restrained from taking or sending or attempting to take or send the children, A DAUGHTER born … May 1999 and TWINS … and … both born … August 2000, from Australia.

2. The Marshal and all officers of the Australian Federal Police and the Police Forces of the States and Territories are requested and authorised to give effect to these Orders.

3. The Australian Federal Police place the names of the Mother, MS HOUSTON (possibly also known as MS M) a female born … August 1973 and the children A DAUGHTER born … May 1999 and TWINS … and … both born … August 2000, on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the Mother or the children from Australia in breach of these Orders.

IT IS FURTHER ORDERED THAT:

1. Permission is granted to publish or broadcast:

   a.           in any newspaper or periodical publication;

   b.           by electronic means including a website;

   a notice or report of these proceedings approved prior to publication by the Media Liaison Officer of the Family Court of Australia.

2. Any notice or report of the proceedings published or broadcast pursuant to these Orders must be limited to:

   a.the full names of the Mother, MS HOUSTON (possibly also known as MS M) born … August 1973 and the Father, MR HOUSTON;

   b.the full names of the children, A DAUGHTER born … May 1999 and TWINS … and … both born … August 2000

   c.      the dates of birth of the children;

   d.      the date of birth of the Mother;

   e.      a photograph or photographs of the children;

   f.a full description of the children;

   g.that the Father has not seen nor heard from the children since 10 March 2007.

3. Any notice or report published or broadcast pursuant to these Orders must include a request that any information as to the whereabouts of the Mother, MS HOUSTON (possibly also known as MS M) or any or all of the children, A DAUGHTER born … May 1999 and TWINS … and … both born … August 2000 should be given to the Australian Federal Police on telephone number 1800 333 000.

4. The Registry Manager must urgently provide a copy of these Orders to the Marshal for distribution to the Australian Federal Police and the State and Territory Police Forces.

5. In the event that the children are recovered after publication or broadcast of a notice or report approved under these Orders, then subject to any order to the contrary, permission is granted to any newspaper, publication, radio station, television channel, or website that published or broadcast the notice or report to publish or broadcast:

   a.      a report of the recovery that is limited to that fact;

   b.      the role, if any, it played in the recovery; and

   c.      the matters listed in order number (10) hereof;

   provided such notice or report is approved by the Media Liaison Officer of the Family Court of Australia.

6. The Secretary of the Department of Immigration & Citizenship forthwith notify the Registry Manager of the Family Court of Australia, Brisbane, upon the Department becoming aware of the return to Australia of the Mother, MS HOUSTON (possibly also known as MS M) a female born … August 1973 or any or all of the children, A DAUGHTER born … May 1999 and TWINS … and … both born … August 2000.

7. The Registry Manager of the Family Court of Australia, Brisbane, forthwith notify the Father’s legal representatives, Green & McKay of any information received from the Department of Immigration & Citizenship relating to the return to Australia of the said Mother and children.

8. The Father be at liberty to re-list the matter before the Honourable Justice Barry on twenty-four (24) hours notice.

9. The Father’s costs be reserved.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC10248 of 2007

MR HOUSTON

Applicant

And

MS HOUSTON

Respondent

REASONS FOR JUDGMENT

1. I will briefly give reasons for the approach that I am taking.  On 28 February last year after a contested hearing Jordan J in this registry made an order that the three children, a daughter born in May of 1999 and twin girls born in August 2000, live with the mother.  She was to have sole parental responsibility in relation to the children. 

2. The father was to have time with the children up to four hours, or such lesser time as the contact centre could make available, each alternate weekend on a Saturday or a Sunday as may be accommodated by the contact centre and there was provision obviously that that time was to be supervised and it was to alternate between two contact centres, one at Coffs Harbour and one at Logan West.  There was one period pursuant to those orders the father had time with the children, I believe, on 10 March. 

3. On 15 March the mother removed the three children from Australia and, as I understand it, they have remained out of Australia since that time.  The probability is they are in the Ukraine, the mother being a Ukrainian national.

4. For the father in this hearing counsel puts forward three options the Court may care to adopt.  All are centred, one way or another, on interpretations of r.21, but essentially the first option is the proposal that I am inclined to adopt and that is if there is non-appearance on a contravention application a Court can order the arrest of the respondent.  Counsel accepted that it is fairly artificial because it has not been served, but the respondent has put herself beyond the reach of the Court.  The Court is entitled to take into account the flagrant nature of her conduct.

5. The second option was to proceed on the contravention.  That option is open under 21.07(a) as to determine the case.  I am not minded to do that at this point in time.  The suggestion from counsel was that I would proceed to hear it, find a prima facie case, find no reasonable excuse and then impose a sentence of imprisonment.  The difficulty is unravelling that order at some future point in time if circumstances would warrant a change of attitude.

6. The third option is the soft option and that is to proceed by way of substituted service, to order service at an address in New South Wales where the wife's partner's parents are said to reside and counsel, in his very helpful written submissions, has set out why the Court would be satisfied that is an appropriate address at which to make substituted service.  I accept the validity of such submissions on that aspect.

7. The difficulty with the third option is expressed succinctly by counsel in paragraph 8 of his written submissions namely the first and second approaches are preferred because they have the advantage of the mother having no notice of the contravention application until she is in Australia.  It is suggested the third option would simply encourage the mother not to return.  The first and second methods are also more cost efficient.  In that regard I am informed that the father is not legally aided and that he has limited funds.  It is really not possible for him to pursue options in the courts of the Ukraine.

   RECORDED  :  NOT TRANSCRIBED

   The dates are not quite clear, but the mother returned to Australia and in fact in August last year service of the amended appeal was made.  There was another sighting of the mother at the Centrelink office in a coastal town around that time.

8. I have canvassed the option if the mother was minded to engage lawyers from overseas to search the Court file if for nothing else than to see what progress was made on the appeal.  Any practitioners on her behalf searching the file would certainly find a record of today's proceedings and also the order that I am about to make.  There is nothing that can be done about that.  I am not going to close the file to a litigant.  In any event, if I made such an order precluding inspection of the file then she would obviously sense that there was something in there that had occurred that would put her on high alert.

9. I am satisfied I can issue a warrant for the arrest of the mother and I propose to do so, but I will order the warrant to lie in the registry. 

10. Counsel has also helpfully drafted orders which are annexed to his written submissions.

    ORDERS DELIVERED

11. Normally airport watches are made for the children, but in this case there is a likelihood that the mother will come back and the children not come back. 

    ORDER DELIVERED

12. The mother could conceivably come back with a combination of the children.

    ORDERS DELIVERED

13. I am not sure that it is really necessary in terms where the father is attempting to pursue legal redress where the mother is seemingly in blatant contravention of existing orders.

14. I will not make an order for costs at this stage, I will simply reserve those, I am not sure what good they would do.

    ORDER DELIVERED

    RECORDED  :  NOT TRANSCRIBED

15. It will be listed before myself on 24 hours notice.

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  21 July 2008