Richards and Whipp

[2008] FamCA 1061

FAMILY COURT OF AUSTRALIA

RICHARDS & WHIPP [2008] FamCA 1061

FAMILY LAW – CHILDREN – Watch list order

APPLICANT: Mr Richards

RESPONDENT: Ms Whipp

FILE NUMBER: SYC 4363 of 2007

DATE DELIVERED: 28 November 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: COHEN J

HEARING DATE: 28 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton

SOLICITOR FOR THE APPLICANT:

SOLICITOR FOR THE RESPONDENT: Mr Twigg

Orders

1. That there shall be contact between the father and …, born … March 2007 (“the child”), with the exception of Saturday 13 December 2008, on the dates and between the times listed in Exhibit “A”, a copy of which is hereunto annexed, at his lodgings for the time being at M Apartments and/or at such other place or places and/or time or times as the parties shall agree in writing.

2. It is noted that such contact is to be supervised by no more than two persons of the mother's choosing, including the mother, with the mother or her agent to deliver the child to the father for the purpose of contact and to collect her at the end of each contact period.

3. That the mother shall on 1 December 2008, at the time and place appointed for that meeting, present herself to Ms B, Family Consultant, at the Sydney Registry, Family Court of Australia, for the purpose of an intake assessment meeting with Ms B and shall do all things necessary to cooperate with Ms B in the undertaking of an intake assessment and the mother is hereby restrained from doing anything to undermine the purpose of the meeting. 

4. That the mother shall, on 11 December 2008, at the time and place appointed for that meeting present herself and the said child to Ms B, Family Consultant, at the Sydney Registry, Family Court of Australia, for the purposes of a child and family meeting with Ms B and shall do all things necessary to cooperate with Ms B in the undertaking of an assessment of the parties and the child and the mother is hereby restrained from doing anything to undermine the purpose of such meeting.

5. That by 4:00pm on Friday 19 December 2008 each party shall file and serve a memorandum of the precise orders he or she seeks.

6. That by 4:00pm 13 February 2009 each party shall file and serve such affidavits as they seek to rely upon in seeking any orders sought in the memorandum of orders referred to in order 5.

7. That by 4:00pm on Friday 13 February each party shall serve upon the other copies of all documents other than affidavits upon which they intend to rely.

8. That subpoenas shall be returnable in the Registrar's list at 9.30 am on Tuesday 16 December 2008.

9. That not less than seven days prior to Tuesday 16 December 2008, the solicitor for the mother shall inform the solicitor for the father in writing of the grounds of his objection to inspection by the father and his legal advisers of such documents as have been produced on subpoena returnable today and all issues over inspection of those documents are adjourned to the Registrar’s list at 9:20am on Tuesday 16 December 2008.

10.That these proceedings are adjourned to a date not earlier than 2 March 2009 to be fixed as a three day hearing of all applications of each party preliminary to and other than their principal parenting applications and for that purpose the proceedings are to be placed on a Judge’s docket other than mine.

11.That the costs of today's hearing are reserved to the judge who makes final orders disposing of these proceedings.

12.That until further order the mother and her servants and/or agents are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child … born … March 2007 (female) from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s names on the Watch List until further order or the Court orders their removal.. 

13.That in the event that the mother wishes to seek to take the child from the jurisdiction at a time which is before the preliminary matters referred to in order 10 herein have been heard and determined, the mother is granted leave to have the application to do so listed for hearing separately from all other applications of a preliminary nature.

14.I hereby disqualify myself from further involvement in and further hearing of these proceedings. 

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4363  of 2007

MR RICHARDS

Applicant

And

MS WHIPP

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. In these proceedings the father seeks orders against the mother to the effect that the child be placed on the Watch List at ports of exit from Australia to prevent the mother from taking the child somewhere which might either impose upon the father great expense or make it impossible for the father, notwithstanding expense, to obtain the return of the child to either the jurisdiction of this Court or the New York Court where there are other parenting proceedings continuing in parallel with the proceedings in this Court. 

2. The mother says she does not want the child on the Watch List because on a previous occasion the father has used the situation or a similar situation to prevent her from going to New York, taking up a job and living in New York with the child. Presumably she infers that he will act maliciously to harm her interests and therefore harm the child. 

3. The father's argument is that he does not trust the mother.  He says that she has previously evaded the jurisdiction of courts and there is a real reason to apprehend, the possibility that the mother will head for a place outside the reach of either the New York or the Australian Courts; a place where the Hague Convention is not enforced. 

4. He points to the fact that the mother has lived in Japan and is a fluent Japanese speaker, and that Japan, for example, is not a Hague country, and that one of the places that the mother says she wishes to be free to go to is Japan. There will be nothing to prevent her from going, and order would really only prevent the child from being taken.

5. On the father's case, if the Court was to accept it, there are real grounds for apprehension that the mother might be motivated to take the child to live in Japan where she may be able to obtain work. 

6. The mother says of course that the effect of an order will, among other things, prevent her from prosecuting her own case in New York.  I do not accept that. Mr Campton rightly argues that there is already provision in the Act which prevents a party to proceedings, where a children's order has already been made, from removing the child from Australia except with the consent of the party in whose favour the children's order was made or an order of a court with jurisdiction in Australia to make children's orders. Mr Campton, for the father, argues that in view of that statutory provision, the only effect or Watch List order is that it gives the father the comfort of knowing that if the mother decides to disobey her statutory obligations, she is much more likely to fail.  Under the statute the mother would have to make an application to remove the child from Australia in any event. Therefore, if she wishes to travel overseas, she is not put at any disadvantage by a Watch List order. 

7. Balancing both arguments leads me to conclude clearly in favour of the father.  I think that there is simply no reason why a Watch List order should be refused in view of the statutory provisions relating to removing the child from Australia, together with the father's fear that this might occur with the consequence of the child being taken to a non Hague Convention country. 

8. This does not mean that I have concluded that the mother might do this.  Simple practicalities have made me decide in the way I have.  The practicality is; as Mr Campton argued, that the Act already prevents the mother, without making an application, from taking the child out of the jurisdiction.  She would have to make an application to do so.  There is no reason why that application cannot include, as a matter of course and at no additional expense or difficulty, an application, for the purposes of taking the child out of the country, to remove that child from the Watch List.  In that event, neither party is disadvantaged in my opinion. I shall make the Watch List orders that the father seeks in paragraph 19 of the statement of issues that he has provided the Court with today and I shall make that order.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen

Associate: 

Date:  5 December 2008