Rilke and Rilke

[2011] FamCA 1055

FAMILY COURT OF AUSTRALIA

RILKE & RILKE [2011] FamCA 1055

FAMILY LAW – CONTRAVENTION

Family Law Act 1975 (Cth)

APPLICANT: Mr Rilke

RESPONDENT: Ms Rilke

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 1284 of 2007

DATE DELIVERED: 21 December 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 21 December 2011

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

1. That the application of the husband filed 21 December 2011 is dismissed on the basis that the wife has established that she had a reasonable excuse for not complying with the order.

2. That at 8.00am on 23 December 2011, the wife hand to the husband the child B together with the child’s passport.

3. That for the purposes of paragraph 1 of the orders made 11 December 2009, the Court is satisfied that the husband has complied with paragraph 7 of that order.

4. That for the purposes of paragraph 7 of the order made 11 December 2009, the transfer of land in registerable form was this day handed to the wife to be retained by her and returned to the husband upon the return of the child to her care on 20 January 2012.

5. That the reasons this day be transcribed and be placed upon the file.

6. 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 under the pseudonym Rilke & Rilke is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC1284/2007

Mr Rilke

Applicant

And

Ms Rilke

Respondent

REASONS FOR JUDGMENT

1. This is an application brought by Mr Rilke to have Ms Rilke dealt with by the court for breaching an order that I made less than 48 hours ago.  The proceedings arose out of parenting orders that I made in 2009.  At that stage, the child was only 7 years of age.  And on the application at that time I refused to allow the child to leave Australia to go on a holiday to the Country C, where his father’s family have always lived.  The orders that I made in 2009 provided that Mr Rilke could take the child to the Country C from 23 December 2011 for, effectively, a month, returning to Australia on 20 January. 

2. But as a precaution I made an order that that trip was conditional upon Mr Rilke handing to Ms Rilke by a date in December 2010 – and I stress 2010 – a transfer of land in registrable form to the property that he owned as a result of the property settlement orders that had been made in 2009.  A number of other matters occurred recently which brought the case back before me 48 hours ago on a contravention.  I dismissed the contravention application of Mr Rilke on the basis that I was not satisfied that Ms Rilke did not have a reasonable excuse for not complying with the order.

3. But the nub of it, at that stage, was that Mr Rilke still did not have the passports for a trip that he was entitled to have from 23 December, providing I could be satisfied that he had handed over the transfer of land in registrable form a year ago.  Notwithstanding Mr Rilke argued that he had done everything that was required of him, I was satisfied at that time that the transfer had not been handed to him.  Ironically enough, it had been handed to a firm of solicitors, who probably should have known better, who were purporting to act for both parties and an argument ensued as to whether they were holding it and for whom.

4. Needless to say, having completed the contravention application, I then activated Part VII of the Family Law Act 1975 (Cth) (“the Act”) and made an order that on condition that Mr Rilke handed to Ms Rilke a transfer of land in registrable form in respect of his property by 12 noon yesterday, Ms Rilke was to hand him the passports.  The evidence today is that the parties in fact met at Ms Rilke’s employment place where Mr Rilke handed to her a document which has been tendered to me in evidence.  I am satisfied that that document is a transfer of land in registrable form. 

5. It clearly cannot be registered today because, first and foremost, it has not been stamped for stamp duty purposes.  Second, the property is affected and encumbered by a mortgage to the Westpac back.  The Titles Office has indicated to Ms Rilke that they will not register it.  That does not mean it is not in a registrable form.  There are lots of ways in which that title can ultimately be transferred into the name of Ms Rilke.  For that purpose, I’m satisfied that there has been a contravention.  But having heard the evidence of Ms Rilke, I’m satisfied that she does have a reasonable excuse, bearing in mind the advice she was given, albeit the advice was misguided. 

6. Contravention application must, therefore, again be dismissed.  A completion of the contravention application, however, again activates Part VII of the Act.  It is clear that Mr Rilke is concerned that he will not be able to travel to the Country C, bearing in mind that it is only 24 hours or so away.  His proposal is that I make an order that Ms Rilke produce the child with the passports by 9.30 tomorrow morning.  I do not propose to do that but, rather, to make the same order that I made in 2009 that the child and, this time, the passports are to be handed to Mr Rilke at 8 am on 23 December, whereupon he can leave Australia with the child and return to Australia on 20 January 2012 by 6 pm, and at that stage hand back to Ms Rilke the relevant passport along with the child.  I otherwise confirm the orders that I made 48 hours ago. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 21 December 2011

Associate:  Elizabeth Hore

Date:  11 January 2012