LEISEL & LEISEL

[2011] FamCA 624

FAMILY COURT OF AUSTRALIA

LEISEL & LEISEL [2011] FamCA 624

FAMILY LAW – CHILDREN – child abducted to Country D – arrest warrant for mother – leave to issue subpoena

FAMILY LAW – CHILD SUPPORT – child support garnisheed from left behind parent – where an abduction of a child overseas does not provide a legislative basis to make an order to grant a stay of the administrative assessment of child support

Child Support (Registration and Collection) Act 1988 (Cth)
Family Law Act 1975 (Cth)

Jennings Constructions Ltd v Burgandy Royale Investments Pty Ltd [No. 1] (1986) 161 CLR 681

APPLICANT: Mr Leisel

RESPONDENT: Ms Leisel

FILE NUMBER: BRC 11745 of 2007

DATE DELIVERED: 5 August 2011

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Watts J

HEARING DATE: 5 August 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE RESPONDENT: no appearance

Orders

1. Leave be granted to the father to make an oral application that the mother be dealt with for contravention of the order of 15 August 2005 on the condition that he file an application for contravention in the appropriate form within 14 days and I dispense with compliance with any rules in the Family Law Rules that would prevent the father from making this oral application.

2. Pursuant to s67Q of the Family Law Act 1975, a recovery order be made and B, born … 2004 (“the child”), be recovered and returned to his father, Mr Leisel (“the father”).

3. The Marshall of the Court, all officers of the Australian Federal Police “(AFP)” and all state and territory police are authorised and directed to, with such assistance as he or she requires or they require, and if necessary by force, find and recover the child and deliver the child to the father and for that purpose stop and search any vehicle vessel or aircraft and enter and search any premises or place in which there is at any time a reasonable cause to believe the child may be found.

4. Pursuant to s 65Q(2) Family Law Act 1975 (Cth) an arrest warrant be issued for Ms Leisel.

5. The application numbered 6 in the father’s application filed 3 August 2011 is dismissed.

6. Leave granted to the father to issue a subpoena to Telstra for phone records of Mr C (the brother of Ms Leisel) for the purposes of discovering any information about her whereabouts in Country D.

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

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FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: BRC 11745 of 2007

Mr Leisel

Applicant

And

Ms Leisel

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Mr Leisel has filed an Amended Application in a Case on 3 August 2011.  In that application he seeks eight orders:

   1.Pursuant to Section 27A of the Family Law Act 1975 that all future hearings be relocated from the Brisbane Commonwealth Law Courts to the Cairns Commonwealth Law Courts.

   2.That an order pursuant to s70NFB(2)(e) of the Family Law Act 1975 that Ms Leisel be sentenced to a term of imprisonment not less than 12 months for contraventions of parenting orders as set down in Court orders dated 15/08/2005 between Mr Leisel and Ms Leisel.

   3.That an order pursuant to Section 65Q(2) for an arrest warrant be issued for Ms Leisel to compel her to appear before the court in relation to the continuing contraventions under Div 13A.

   4.Pursuant to s67Q(a) of the Family Law Act 1975, this Honourable Court order that B born in 2004 (“the child”) be recovered and returned to his father, Mr Leisel (“the father”).

   5.The Marshall of the Court, all officers of the Australian Police (“AFP”) and all state and territory police are requested to find and recover the child and deliver the child to the father and for that purpose stop any vehicle vessel or aircraft and enter and search any premises or place in which there is at any time a reasonable cause to believe the child may be found.

   6.Pursuant to s111(C) of the Child Support (Registration and Protection) Act 2008 the requirement to pay child support be stayed pending the return of the child to his father.

   7.An order of the court to subpoena the bank account details where the Child Support Agency has paid funds to Ms Leisel as recently as 14 July 2011 for the purpose of discovering her whereabouts so the Hague Convention order can be lodged in Country D.

   8.An order of the court to subpoena the phone records of Mr C (brother of Ms Leisel) for the purpose of discovering her whereabouts so the Hague Convention order can be lodged in Country D.

2. The father has made an application that the mother be sentenced pursuant to s 70NFB(2)(e) Family Law Act 1975 (Cth) (“FLA”) without having made any application she be dealt with for contravention of an order. I have granted the father leave to make an oral application that the mother be dealt with for contravention of the order of 15 August 2005 on the condition that he file an application for contravention in the appropriate form within 14 days and I have dispensed with any part of the Family Law Rules that would disallow the father making that oral application.

3. The father relies upon the following documents:

   3.1.An order made by consent dated 15 August 2005.  That order provided that B born in 2004 reside with his mother and have contact with his father as agreed between the parties.  That order permitted the mother to relocate to Sydney with the child and there is a provision for overseas travel which was in the following terms:

   6.Either parent may travel overseas with the child conditional upon that parent:

   6.1Providing the other with one month’s written notice of their intention to travel.

   6.2.Providing the other with a copy of the child’s pre-paid return air ticket prior to departure.

   A further order provided for makeup contact in lieu of the time that the child was overseas with either parent. 

   3.2.Further orders made on 17 May 2010:

   3.2.1.Granting a recovery order to the father; 

   3.2.2.An order addressed to the Marshal of the Court and other police officers requesting them to assist in the execution of the recovery order;

   3.2.3.An order that the child live with the father and the father have sole responsibility for making decisions about long term care, welfare and development of the child; and

   3.2.4.A publication order.

   3.3.The father has provided me with a copy of a letter that he says is in the mother’s handwriting dated 27 September 2008.  That letter is evidence of the fact that the mother intended to remove the child from the country without complying with the provisions in orders 6.1 and 6.2 of the orders dated 15 August 2005 (as set out in paragraph 3.1 above). 

   3.4.In an affidavit of the father sworn 7 October 2010 the father says that on or about 19 September 2008 he and the mother had an argument because the father was furious about accusations the mother had made about him and he had indicated to the mother that he would be making an application to the court to change the access arrangements and that she had then said to him words to the effect, “You will not see [B] for a very long time”.  The father deposes to the fact that the mother left Australia with the child shortly after the argument they had on 19 September 2008.  The father deposes the mother took the child from Australia on 28 September 2008. 

   3.5.Ms E, who is a team leader with the Court Services Unit (Child Safety) of the Department of Communities has provided an affidavit saying that in her capacity as a delegate of the Director of the State Central Authority under the Family Law (Child Abduction Convention) Regulations she has had involvement with the father in attempting to recover the child from Country D under the Hague Convention. Her evidence is that the Hague application was instituted in 2008. She deposes to the fact that her file records show regular requests for updating information from the Country D Central Authority have largely gone unanswered. She notes that Country D has been a signatory to the Hague Convention since 1996 and to her knowledge this is the first matter in which Australia has attempted to recover a child under the Hague Convention from Country D. She comments on the father’s request for an arrest warrant. She opines that if the court makes that order it would result in an increased involvement by Interpol and potentially greater action by law enforcement agencies in Country D.

4. The father’s evidence is that the child has not been returned to Australia since being removed by his mother from Australia on 28 September 2008. 

5. The father has commenced appropriate proceedings under the Hague Convention but the Central Authority in Country D is yet to respond.

6. Pursuant to s 65Q(2) FLA I find that the father has a parenting order which provides that the child was to spend time with him (namely the order made 15 August 2005). I am satisfied that there are reasonable grounds for believing the mother has contravened s 65N FLA in that she refused to deliver the child to the father for the purpose of him spending time with his father and has continued to do so.

7. I proceed on the basis that there is before me an application for the mother to be dealt with under Division 13A FLA for the alleged contravention. I find that it is appropriate to issue a warrant authorising the arrest of the mother upon her return to the country for the purpose of bringing her before the court to answer the father’s charge that she has contravened an order of this court.

8. On 17 May 2010 I note that Justice Bell, pursuant to s 67Q FLA made a recovery order and an order directed to the Marshal of the Court and other police officers. That order has expired and I accept that it is appropriate to refresh that order and I accordingly make orders in accordance with paragraphs 4 and 5 of the father’s application.

9. The father has recently had an amount of $3,000 garnished from his Westpac account by the Child Support Agency.  

10. The father has sought an order in the following terms:

    6.Pursuant to s 111(C) Child Support (Registration and Collection) Act 2008, the requirement to pay child support be stayed pending the return of the child to his father.

11. Section 111C(1) Child Support (Registration and Collection) Act 2008 (“CS(RC)A”) is relevant in the following terms:

    This section applies if a proceeding has been instituted

    (a) in a court having jurisdiction under this Act; ....

    (d) under Part 6A or 7 of the Assessment Act

12. Section 111C(2) CS(RC)A says a party to the proceeding may, subject to the Family Law Act 1975:

    (a)  in the case of a proceeding instituted in the court – apply to that court for an order under this section; or

    (b)  otherwise – apply to the court having jurisdiction under this Act for an order under this section.

13. Section 111C(3) CS(RC)A says:

    Pending the hearing or final determination of the proceedings, the court may make such orders as the court considers appropriate staying or otherwise affecting the operation or implementation of the Assessment Act and this Act if the court considers that it is desirable to do so, taking into account the interests of the person who may be affected by the outcome of the proceedings.

14. There is an argument that:

    14.1.The Family Court of Australia is, inter alia, “a court having jurisdiction under this Act (CS(RC)A)” (see s 104(1) CS(RC)A); and

    14.2.The father has instituted proceedings in a court having jurisdiction under the CS(RC)A (notwithstanding the fact that those proceedings are for a suite of orders under the FLA and have nothing to do with child support);

    and consequently s 111C(1) CS(RC)A allows the father to maintain his application.

15. That interpretation of the words “proceeding” and “proceedings” in ss 111C(1), (2) and (3) CS(RC)A is too wide. Normally the jurisdiction to grant a stay depends on whether a stay is necessary to preserve the subject-matter of the litigation.  There needs to be a connection between any application for a stay and an application seeking final orders which has prospects of success that are not insubstantial (see for example Jennings Constructions Ltd v Burgandy Royale Investments Pty Ltd [No. 1] (1986) 161 CLR 681).

16. “Final determination of proceedings” in s 111C(3) CS(RC)A refers to proceedings under the CS(A)A or the CS(RC)A where a final order is sought. 

17. The proceedings before me are under the FLA. There are no proceedings in relation to child support before me and consequentially I would not be able to make a stay order in relation to child support pending the final determination of child support proceedings. Proceedings relating to an abduction of a child overseas do not provide a legislative basis to make an order to grant a stay of the administrative assessment of child support. Accordingly I dismiss the application numbered 6 in the father’s application filed 3 August 2011.

18. In relation to the father’s application to issue a subpoena to the Child Support Agency, I have indicated to the father that the appropriate course is to seek a location order and he has indicated an intention to do so, therefore I will deal with that application once I receive it. The reason I cannot deal with the matter today is that s 67N(3) FLA requires a copy of any such application to be served upon the person to whom the order will apply, namely the Secretary of the Department.

19. I will grant leave to issue the subpoena in relation to the mother’s brother’s telephone records. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 5 August 2011.

Associate:

Date:  9.8.2011