Rilke and Rilke (No 2)

[2011] FamCA 1056

FAMILY COURT OF AUSTRALIA

RILKE & RILKE (NO 2) [2011] FamCA 1056

FAMILY LAW – CONTAVENTION: No evidence to support allegations.  Need for precise evidence before breach can be found.
FAMILY LAW – PARENTING: Injunction preventing application to overseas court.

Family Law Act 1975 (Cth)

APPLICANT: Mr Rilke

RESPONDENT: Ms Rilke

FILE NUMBER: DGC 1284 of 2007

DATE DELIVERED: 19 December 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 19 December 2011

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

1. That the contravention application filed 5 December 2011 by the husband is dismissed.

2. That paragraph 6 and 7 of the orders made on 11 December 2009 are varied such that the husband give to the wife personally by 12 noon on 20 December 2011 a transfer of land referred to in paragraph 7 of the orders made on that day whereupon simultaneously, the wife give to the husband the child’s passport which is to be returned to the wife upon the return of the child from Country C in January 2012.

3. That the husband is restrained by injunction from instituting in Country C of any application which would seek or have the effect of seeking, parenting orders relating to the child which are inconsistent with the orders of this Court.

4. That the two applications otherwise of the husband filed 5 December 2011 and the response thereto of the wife filed 9 December 2011 are dismissed.

5. 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 (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 1284 of 2007

Mr Rilke

Applicant

And

Ms Rilke

Respondent

REASONS FOR JUDGMENT

1. This is a matter in the judicial duty list only days prior to Christmas 2011.  There is not much Christmas spirit in this case.

2. The application I am dealing with is a contravention application brought by the husband against the wife.

3. The allegation asserts that on 1 December 2011, the wife, without reasonable excuse, did not provide the husband with an Australian passport for their child.

4. The order that is relevant, and which is said to have been breached, is an order that I made in December 2009.

5. That order provided that, subject to the husband providing to the wife by 1 December 2010 an executed transfer of land in registrable form in respect of a property owned by him, to be held by her in escrow until return from Country C.  The husband could take the child, B, out of the Commonwealth of Australia to Country C from 23 December 2011 until 20 January 2012.

6. On any view of the interpretation of that order, the trip to Country C was on condition that the document, namely, the transfer of land, was provided to the wife.

7. The wife’s argument was that she had not received the transfer of land in executed form.  She attached to her affidavit, three letters from a firm of solicitors in Suburb D, who unashamedly noted, in October 2010, that they were acting for both parties in a transaction.

8. The first of three letters pointed to the fact that they would hold the transfer of land once it was signed by the husband, and then destroy it once the trip in 2012 was completed.

9. A second letter, dated 12 November 2010, noted some errors had been made by them, but repeated the same things about what was happen to the transfer.

10. On 2 December 2010, the solicitors wrote to the wife.  It is clearly a response to a letter by the wife in which she requested to have the transfer in her hand and for her to hold it pursuant to the orders that I made.

11. For reasons best known to the solicitors, they said that they were unable to give it to her.  They said that if she engaged a solicitor to act on her behalf, they could forward it to those solicitors.

12. That was a rather unusual letter to write, having regard to the fact that the solicitors were acting for both the husband and the wife.  Presumably they saw their obligations to both parties, and worked on the principle that they could not hand over the transfer without the permission of the husband.

13. The husband’s evidence before me today is that he had followed his legal advice, and as far as he was concerned, the transfer was held in escrow on behalf of the wife by the solicitors.

14. I do not accept that.  Nor do I accept that there has been compliance with the order that I made.  Albeit that nothing has happened for 12 months, the order was very clear.

15. In terms of the breach of the order application, therefore, I am satisfied that there has been no breach, because the wife was not given the transfer of land to be held by her in escrow prior to 1 December 2010.

16. The contravention application must, therefore, fail.

17. Section 70NAC of the Family Law Act 1975 (Cth) (“the Act”) says that a person who is taken to have contravened an order, if and only if where the person is bound by the order, he or she has intentionally failed to comply with the order or made no reasonable attempt to comply with the order.

18. The wife did not have to comply with the order, until such time as the husband had fulfilled his part.  Whether the transfer was in the hands of the solicitors or not, the wife clearly wanted it and did not get it.

19. On that basis, the application must be dismissed. 

20. However, the completion of the contravention application activates Part VII of the Act. Part VII of the Act entitles a court to vary its orders and ensure that previous orders which were intended by the court, are carried out. In addition to the husband’s contravention application, both parties filed various applications for parenting orders. I turn to those.

21. The husband’s application sought to bring forward the departure from Australia from 23 December to 20 December.  The basis upon which he wanted to do that was that he did not think the wife would comply with the order, and therefore he wanted to get an opportunity to get back into court if she did not hand him the passport and the child.

22. The wife’s response, which formed the basis of a set of orders she sought, was that she did not trust the husband to return to Australia with the child.  She set out in a very long affidavit, a whole series of complaints about the husband’s behaviour and maintained there was no basis to let the child go to Country C until he turned 16 years of age.

23. The wife’s affidavit is a mix of complaints about the husband and an expression of her concerns about what might happen to the child.  It was also a re-run of a number of matters that were determined in 2009.  She said that what she feared the husband would do would be to try to re-run the case in Country C.

24. That problem can be resolved by me ordering the husband be restrained from bringing any such application in Country C.  I would suspect that if a court in Country C was made aware of these reasons, it would be most unlikely to embark upon a custody case.

25. In addition to that concern, the wife said that in August 2011, the husband made allegations to the child support agency about her.  She attached to the affidavit, a copy of the child support review.  I have read that document.  There is no indication, that I can read, in the child support review officer’s decision indicating any such concerns that might justify me concluding that the parenting orders ought be changed.

26. Another complaint the wife made is that in 2011, the husband sent her emails, which she described as intimidatory, concerning the child’s medical appointment, and as a consequence, she construed that she had been threatened by the husband with further court action.

27. At paragraph 191 of the judgment that I handed down on 25 September 2009, I made my views clear about the medical treatment of the child.  I expressed the view that I thought the wife was quite sound in her care of the child, so to the extent that the husband was making any veiled threat to take some further court action, it could not be unless there was some new act, fact or circumstances that had arisen since September 2009.

28. In my view, the wife’s concern, therefore, about the husband’s potential threat to bring further applications was unfounded.

29. The wife’s affidavit went on to say that she lived in fear and dread of what the husband would be planning in Country C.  She provided no evidence, nor, presumably, could she, about what might happen there, other than the fact that he was going to spend some time with family members.  That would not be a basis for me to conclude that the orders ought be changed.

30. The wife, then, went on to say that she was cognisant of the Hague Convention relating to the abduction of children.  She went so far as to print off from the internet a print-out showing what the Hague Convention was about.  She said, in her affidavit, that the Convention may not protect her son, because it did not stop abduction.

31. In this case, the solution to that problem would be, as I have outlined to the parties, for me to injunct the husband from taking any proceedings in Country C.

32. The wife then went on to say that the lengths the husband would go to and his capabilities in Country C were limitless, but there is no evidence of that other than the fact that he had some training as a teacher teaching legal matters and he had the resources.  That would not be a sufficient basis for me to alter the 2009 orders; I had contemplated those problems at that stage.

33. Most of the rest of the affidavit was largely irrelevant to any application to vary the 2009 orders.

34. I accept that the wife has great difficulty in accepting that the child might benefit from the trip to Country C.

35. The solution to the problem seems to me to be that I ought vary the orders I made in 2009 to direct that the transfer of land be handed to the wife by the husband, and not to some solicitor, by midday on 20 December, to be held by her in escrow, as I previously described it in 2009, until the husband returns with the child in January.  If that transfer of land is not handed to the wife by midday on 20 December, then the wife can presume that the trip is not to proceed.

36. On the basis that the trip is to proceed, I see no logical reason why an injunction ought not be granted precluding the husband from bringing any proceedings in Country C in relation to parenting issues.  In my view it is proper to make the order.

37. Leaving the issue of the Hague Convention aside, the appropriate forum for any parenting issue in this case is Australia, because that is where the child lives.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 19 December 2011.

Associate: 

Date:  13 January 2012