O'Neill and Fletcher

[2007] FamCA 117

FAMILY COURT OF AUSTRALIA

O’NEILL & FLETCHER [2007] FamCA 117

FAMILY LAW - PROCEDURAL - Forum - Orders made in Australia registered in Canada - Subsequent proceedings in Australia and Canada

Family Law Act 1975 (Cth)

HUSBAND: Mr O’Neill

WIFE: Ms Fletcher

INDEPENDENT CHILDREN’S LAWYER: Independent children's lawyer

FILE NUMBER: MLF 5472 of 1999

DATE DELIVERED: 31 January, 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 31 January, 2007

REPRESENTATION

THE HUSBAND: In Person

SOLICITOR FOR THE WIFE: No appearance

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr Casement

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Donald S Lampe, DX 38239, Flagstaff

Orders

1. That the form 2 filed by the husband on 29 January, 2007 be consolidated with the application for contravention filed by him in the Federal Magistrates’ Court on 27 September, 2006 (which was referred to this Court on 22 November, 2006) and listed for mention before the Honourable Justice Bennett on Tuesday 13 February, 2007 at 9:30 am.

1. That the wife file and serve a form 2A response and all affidavits in support of that response no later than seven days prior to the adjourned date. 

1. That a copy of this order be sent to the wife by :

   (a)email addressed to the wife;  and

   (b)facsimile addressed to Ms H, Barrister and Solicitor on facsimile number ….

1. That a copy of the order of Justice Bennett made 20 December, 2006 be forwarded by facsimile to Ms H at the above number.

1. That the wife forthwith provide an address for service within Australia as required by the Family Law Rules 2004.

1. That the reasons for judgment this day be transcribed and placed on the Court file, and that copies be made available to the parties.

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

AND THE COURT NOTES

1. The advice of Ms H, Barrister and Solicitor of Ontario to the independent children’s lawyer, of an order made by Justice Edward of the Ontario Court of Justice (whether made on 14 December, 2006 or a date in January 2007) suspending the husband’s access to the child C born in August, 1998, save for telephone access pending the hearing of the wife’s motion to vary the order of Justice Frazer dated 7 June, 2005 (that order being one recognising that an order made in the Federal Magistrates’ Court on 5 May, 2005 was for all purposes an order of the Ontario Court of Justice).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 5472  of 1999

Mr O’Neill

Husband

And

Ms Fletcher

Wife

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This case has a lengthy history in the Federal Magistrates’ Court and the Family Court.  It involves the parties’ daughter, C, who was born in August, 1998.  Proceedings commenced in the Federal Magistrates’ Court in 2002.  At that time the husband was legally represented.  Subsequent proceedings, involving an application by the wife to relocate the child’s residence to Canada, were heard in 2005.  By then the husband was not represented and he remains unrepresented. 

1. In 2005, Walters FM made orders allowing the wife to relocate the child’s residence to Canada.  That order was required to be registered in Canada, which occurred.  It provided for the child to spend time with her father in Australia, and for communication between them.

1. On 27 September 2006, the husband filed an application in the Federal Magistrates’ Court seeking that the wife be dealt with for contravening those orders.  Pursuant to them, she was required to advise him in September of the dates on which the child would be brought to Australia.  She having failed to do that, he filed an application, which was served on the wife in Canada on 12 October, 2006.

1. When the matter came before Walters FM on 22 November, the wife appeared by telephone.  I have before me a transcript of that hearing.  In the course of it, Walters FM made it very clear that, on the material before him, it appeared the wife was in breach of the orders.  Indeed, having read the material she provided, he said that it seemed to him that her attitude was intolerable, and that she had misled the court on previous occasions.  Noting that the case involved either an application pursuant to the Hague Convention, or the question of the appropriate forum between Canada and Australia, he referred it to this Court for hearing.  He gave the wife seven days in which to file material.

1. The matter then came before Bennett J on 20 December.  Again, the wife appeared by telephone.  On that day, her Honour adjourned all applications for mention before her on 13 February at 9.30 am and required both parties to attend on the adjourned date.  She noted in the order that the time which the father was entitled to spend with the child, pursuant to paragraph 8B(a)(ii) of the 2005 orders, was to commence at 12 noon on Saturday, 27 January, 2007.  For that purpose, the mother was to deliver the child to the father at the former matrimonial home at F in Victoria.  Further, she noted that the time the father was entitled to spend with the child in 2007 was as detailed in the calendar which was annexed to that order and marked as annexure A. 

1. The order could not have been more clear.  A copy of the order, signed by her Honour, was emailed to the wife on 20 December, the day her Honour made the order.  Pursuant to that order, the child was to come to Australia from 27 January until 18 February, and the wife would thus be here for the hearing on 13 February.

1. In an affidavit sworn on 29 January, the husband deposed that when he spoke to the child on the phone on 27 January she told him they were still in Canada, they were not coming to Australia and that her mother had sent him an email explaining why.  A copy of that email is annexed to his affidavit.  It is dated 27 January.  It says:

   Dear [the husband], I'm writing to let you know that [the child] will not be available for contact on Sunday, January 28th at 12.00.  The appropriate documents will be served to you outlining the reasons for this decision.  Sincerely, [the wife].

1. The husband further deposed that he spoke with the wife on 27 January.  He asked why she and the child were not coming to Australia;  she said that she was not in a position to disclose what “is in the orders”.  At that time, the husband knew of no orders of any court other than an Australian court.  Nor did Bennett J. know of any other orders when she heard the case on 20 December.  Despite appearing and making submissions to Bennett J., the wife failed to bring to the Court's attention on 20 December (or to the husband's attention at any time after that) that on 14 December 2006 she had filed an ex-parte application in the Ontario Court of Justice.

1. I cannot say if that Court knew that proceedings commenced in Australia on 27 September, 2006 and were served on the wife on 12 October, 2006, well before whereby she commenced proceedings in Canada.  It appears that the wife’s lawyer in Canada certainly knew of the Australian proceedings.  I cannot say if the Canadian Court knew of the wife’s appearance (by telephone) in the Australian proceedings, on two occasions, or that she failed to advise the judge of the Canadian proceedings.  I can say that, on its face, her failure to advise the Federal Magistrates’ Court and this Court of the application in Canada demonstrates a contempt for both courts and a willingness to deceive to achieve perceived advantage.

1. In a fax sent to the independent children's lawyer on 29 January (but not sent to the husband) an Ontario solicitor, Ms H, advised the independent children's lawyer that she represented the wife in the Canadian proceedings.  She advised that she had prepared a motion to vary, but in light of the ongoing proceedings brought by the husband in Australia, she filed an ex-parte motion in the Ontario Court of Justice. 

1. Edward J required them to attend on 14 December, 2006 and he reserved his decision on that day.  Ms H advised that as they had not heard anything from the judge, her client (the child’s mother) participated in the Australian proceedings by telephone and felt obliged to agree to bring the child to Australia pursuant to the Australian orders.  She says nothing about the wife’s failure to advise this Court of those proceedings.  Her advice was - and I quote, as the language is different to that of this jurisdiction :

   I was on trial last week and received the judge's endorsement, wherein he suspended access (except telephone access) and appointed the office of the children's lawyer to represent [the child].  I am enclosing herein a copy of the memo from the judge's secretary together with the endorsement as signed by Edward J.  I am also enclosing a copy of the order I have drafted which I hope to have signed by the clerk in the next day or two and then I will send that as well.

   [. . . ]

   As soon as the order has been formally signed, all documents will be sent to Australia for service on [the husband].

1. The endorsement is dated 14 December 2006.  It provides that the clear tenor of the earlier orders was to make the Ontario courts the court of future jurisdiction over the child.  It asserts that the affidavit material filed by the mother - which I note is not before this court - paints a troubling picture of the father's conduct to the child when he visited with her last summer in Toronto, and that the child spoke of being left alone in a strange apartment in Toronto while the father went to use the laundry.  It asserts that from July to December 2006 the child participated in 30 play therapy sessions and the play therapist reported at page 12 of her report - again not before this court – that “[the child] continues to harbour a great deal of anger and resentment towards her father”.  It was for these reasons that, ex-parte, he made the order. 

1. It seems that the process in Canada, as in some superior courts in Australia, is that the lawyers prepare a form of order and submit it to the court for signing.  If it is in order, it is signed, sealed and made available to serve.  This is not the position in this Court where the court accepts responsibility for preparing the order.  No signed order of the Canadian Court is before me.

1. Still knowing nothing whatsoever about any proceedings in Canada, the husband filed a form 2 application on 29 January (following his discussions with the child and her mother) in which he sought that the child be immediately brought to Australia by an independent party or social worker.  I have explained to him today that the court could not make an order in those terms.  That does not mean that other orders could not be made.

1. It beggars belief that the wife would appear before Bennett J, having been legally represented in proceedings in a court in Ontario some six days earlier, and not advise her Honour;  that she would not advise the independent children's lawyer;  that she would not advise the child's father;  and that the first the independent children's lawyer knew was when he received the facsimile sent on 29 January.  Ms H, in her letter to the independent children's lawyer, said she faxed the endorsement to the attention of Bennett J on 25 January, at a specified fax number.  There is no record of its receipt and the number does not look like a fax number of this court.  She enclosed a copy of her fax confirmation, which is part of exhibit ICL1.

.

1. The only other correspondence the court has received is this.  On 21 December 2006, the day after Bennett J's associate emailed the order to her, the mother sent a letter to Bennett J's associate, …, asking a question about the days specified by her Honour in the order, saying she was confused and would like clarification.  She said nothing in that email at all about the Canadian proceedings.  On its face it suggests an intention to comply, as it said she would appreciate clarification so "I know how to plan and prepare my daughter and I for this visit".

1. Bennett J's associate was on leave until 18 January.  On her return she immediately emailed the wife, apologising for the delay and advising that the court was unable to provide legal advice.  She said she was not able to interpret orders but would make an inquiry of the registrars to see if they could assist.  The following day she sent a second email, confirming that the court could provide neither legal advice nor the clarification sought.  Having regard to the request and the clarity of the orders, that is not surprising.

1. A careful perusal of the file reveals no other correspondence from the wife.  The husband knew nothing whatsoever of the Canadian proceedings until he was advised this morning, at court, by the independent children's lawyer. That must have come as a very real shock to him.  It is clear now that it will be necessary to hear submissions as to which is the appropriate forum for the proceedings.

1. The independent children's lawyer has proposed that, through a community legal service, an attempt be made to obtain, pro bono, advice for the husband and possibly, a pro bono appearance on that date.  The orders of Bennett J require the mother to appear in person at that time.  She made that order believing the wife would be here in Australia.  That order remains on foot. 

1. Regrettably, as this application is brought ex-parte, I can do nothing but adjourn it to the date fixed by Bennett J., being 13 February at 9.30 am.  I have set out the history in some detail in the hope it will be of assistance both to the parties and to the judge before whom the matter is listed.

I certify that the preceding
21 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of           2007.

…………………………………………
Associate

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as O’NEILL & FLETCHER