Seymour and Seymour

[2009] FamCA 1350

FAMILY COURT OF AUSTRALIA

SEYMOUR & SEYMOUR [2009] FamCA 1350

FAMILY LAW – CHILDREN – with whom a child spends time
FAMILY LAW –  INJUNCTION – watch list order

Family Law Act 1975 (Cth)

APPLICANT: Mr Seymour

RESPONDENT: Ms Seymour

FILE NUMBER: SYC 4559 of 2009

DATE DELIVERED: 23 December 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Judicial Registrar Loughnan

HEARING DATE: 23 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P. Cook

SOLICITOR FOR THE APPLICANT: H.A. Miedzinski Lawyers

COUNSEL FOR THE RESPONDENT: Mr P. Connor

SOLICITOR FOR THE RESPONDENT: Argyle Lawyers Pty Ltd

Orders

1. Leave to approach the Listing Manager for a date before a Judge, estimated hearing time 1 day, in relation to the questions of jurisdiction and whether this Court should exercise jurisdiction in relation to the parties’ children.

2. In relation to that leave orders are made in terms of the document titled “Timetable” marked Exhibit 3 as set out hereunder:

   “1.The wife to file and serve any response she wishes to make to the husband’s Initiating Application by 1 February 2010.

   2.The parties to file and serve any affidavits upon which they wish to rely by 1 February 2010.

   3.The parties to file and serve any written submissions they wish to make by 8 February 2010.”

3. The “Open Offer” contained in a letter dated 11 December 2009 is marked Exhibit 1.

4. The document titled “Short Minute of Order” is marked Exhibit 2 and pending further order, orders are made in terms of paragraphs 1 (a) and (b), but substituting between 5:00 pm and 6:00 pm for 5:00 pm and 9:00 pm in 1(b), 4, 5, 6, 7 , 8 and 9 of that document as set out hereunder:

   “1.Pending further order, that the children spend time with the father as follows:

   (a)For the 2009 Christmas school holiday periods from 2:00 pm 25^th December 2009 until 12:00 pm 17^th January 2010;

   (b)Thereafter, the first three weekends of 4 from Friday between 5:00 pm and 6:00 pm until the following Sunday between 5:00 pm and 6:00 pm each alternate weekend until July 2010.

   4.That the mother and father shall contact each other on the following telephone numbers:

   (a)The father’s contact details are at the date of the orders: […] or […].

   (b)The mother’s contact details are at the date of the orders; […] or […].

   5.If the parties change phone numbers or their place of residence they will notify the other party within 48 hours of any such change.

   6.The mother will make the children available to attend any special events requested by the father with the father providing at least 7 days notice to the mother of such event.

   7.If in the event that either parent is unable to care for the children, for a period of greater than 24 hours, the other parent will at first instance have the opportunity to care for the children and the children.

   8.The father may attend any of the children’s sporting events and school commitments and the mother will advise the father of these events.

   9.Each party shall ensure that the other party is advised promptly but no later than 1 hour of any medical emergency or significant illness suffered by or relating to the child or children and including sufficient details to enable both parties to be consulted in respect to or fully advised regarding such illness or condition and any treatment recommended or provided to the child and or children if hospitalised.

5. That unless the parties agree to the contrary handover is to be effected by the father collecting the children at the commencement of each occasion from the mother’s premises or a child’s sporting fixture and returning the children to the mother’s premises at the conclusion of each occasion.

6. That pending further order each of the parties be restrained from removing and/or causing the removal of the children T (male) born … July 1993, J (male) born … March 1996, Y (male) born … June 1998 and R (female) born … May 2004 from the Commonwealth of Australia until 1 July 2010 AND the Court requested the assistance of the Australian Federal Police in the implementation of that order AND in particular that the Australian Federal Police place the names of the children on the PASS system at points of international departure from Australia until 30 June 2010.

7. That the parties attend a Child Dispute Conference at times and dates appointed by the Manager, Child Dispute Services.

8. Leave to the parties to restore the proceedings to the list on giving 48 hours’ notice to the Court and to the other party.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4559 of 2009

MR SEYMOUR

Applicant

And

MS SEYMOUR

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to four children:  T, J, Y and R.  They are 16, 13, 11, and five years of age, respectively. 

2. Their father and mother are 45 and 48 years of age respectively.  They started living together in the Republic of Ireland in September 1987, were married there in July 1990 and separated on 15 January 2008.

3. The father's affidavit, notwithstanding that it's about the size of the Newcastle phone book, doesn't actually give a picture of how the parties got from Ireland to Australia but says that they did.  I gather that the parents are both Australian citizens. The father gives a history of the children being born.  The parties were living at H at one point after R’s birth. He says the mother was diagnosed with breast cancer and had surgery and chemotherapy in 2004.  The parties reached an agreement whereby the mother would travel with the three younger children to Ireland in 2006 and she did that.  T was a boarder at U College at that stage and he stayed with the father. 

4. There is a dispute between the parties. The father thought the move was for a short period - 6 to 12 months; the mother says she thought it was going to be longer. The father and T travelled to Ireland in August of 2006. The father travelled there again at Christmas 2006 for four weeks.  He travelled back again Easter 2007 and the mother said that she intended to stay until the end of 2007.  The father says that in about May 2007 he realised that the mother wasn't inclined to return.

5. The father took leave without pay from his job and went to the Republic of Ireland for six months in July 2007. The parties had some marriage counselling. The father says that at the end of 2007 the mother said to him that she intended to remain in Ireland indefinitely.  The mother served him with some papers in relation to a separation and custody. The father says she drew, without his knowledge or consent, $300,000 on their Australian mortgage. The father says that the mother hid the children's passports from him, and in April 2008 she removed the child R, took her passport and went away for two weeks.  The father says he brought proceedings in the Irish High Court. 

6. On 11 December 2008 orders were made in the High Court following a Hague Application.  The parties disagree as to the nature of the jurisdiction exercised by that court. In any event the orders were expressed to be by consent.  The orders made provision for the mother and children to come back to Australia in July 2009 for a year.  They didn't make detailed provision in relation to the father's time with the children.  I am told, without complaint on behalf of the father, that the orders required him to live in metropolitan Sydney.  The orders required the establishment of mirror orders in Australia.  There were further proceedings in the Irish court. Ultimately, On 12 August 2009 the mother was required to put herself and the children on a plane within three days. 

7. The mother has not given any evidence in the proceedings and I am told that is because she does not want to be seen to accept the jurisdiction of the court.  Her case will be that the father frustrated aspects of the Irish orders in that he never agreed to facilitate mirror orders being established in Australia.  She would have it that the Irish Court was not upset in relation to any non-compliance by her with her obligations under the orders.  She came back to Australia.  The parties have reached some informal agreements in relation to the children spending some time with the father. The orders of December 2008 dealt with the question of schooling and the parties have put something in place.

8. The matter came before me on 2 December 2009 and I made some orders.  The father was to file and serve anything else he wished to rely on (as if there was anything left to file) within seven days.  Anything the mother wanted to rely on was to be filed and served within a further seven days.  The parties were to provide my chambers at least 24 hours prior to today's date a case outline document briefly setting out the principles to be applied, the arguments to be made in relation to the issue jurisdiction, in circumstances where there has been a purported registration of orders made in the High Court of the Republic of Ireland. 

9. No documents have been filed by the mother.  No case outline document was received on behalf of the mother and I indicated to the parties in those circumstances and because there are problems in relation to a delegate making a determination of jurisdiction binding on another judicial officer, in my view the preferable course was to have the issue of jurisdiction, if it couldn't be argued today, then argued on another day.

10. Having heard submissions from counsel, I an now unsure about whether there is an issue about jurisdiction. I think there is an argument about whether this court should exercise jurisdiction in the circumstances that have befallen these proceedings and, in any event, whether orders made in the High Court in Ireland attract the doctrine of res judicata.  In other words that a court has already determined the same issue and, as a matter of comity between courts independent of any international convention or covenant, this court should respect the thrust of the orders. 

11. It is conceded on behalf of the mother that this court has a basis for exercising jurisdiction.  I think that's a sensible concession.  The children are physically here in Australia and the court has jurisdiction under its own criteria because of their presence. The Irish orders don't deal with all of the controversy dealing with the children's living arrangements. Thus there is a lacuna in relation to the orders and it's hard to see it being a practicable course for the Irish Court to exercise power in relation to day to day issues for the time when the parties and the children are to be in Australia. 

12. Something had to be done about the children. As it turned out the parties were  very close to settlement. Not much falls to be determined by me.

13. The parties want the children to be with the father from 2 o'clock on Christmas Day until 12 noon on 17 January 2010. The parents want the children to be with the father on weekends. The father wants three weekends out of four. The mother says it should be every second weekend.   The father would like orders that fix the arrangements well into the future, indeed, orders past July next year. That worries the mother because she thinks that the Irish Court already decided that the children would be in Ireland from July 2010.

14. The father is anxious to prevent the children being removed from this jurisdiction.  There is a provision in our Act (section 65Z) that says if there are proceedings on foot in relation to a child then it is an offence to take the child out of the jurisdiction without the consent of the other party or an order. Therefore I have no hesitation in putting the children on the watch list in aid of that provision.

15. As to whether it should be two or three weekends out of four, I will make the order the father seeks.  In prospect, we have had significant disruption in his relationship with the children.  The parties both want him to have a relationship with the children.  The legislation says I am to consider with a view to ordering equal time.  If I cannot do that, I am to consider with a view to ordering, substantial and significant time, which is a defined term. Neither of those concepts are achieved with the proposed orders. The legislature has put a finger on the scale and said in the normal course, children should be involved with a parent so that they're involved in important aspects of the parent's life and vice versa.  It is a subtle thing, but I think the father's application is closer to the mark than the mother’s. The mother wants the father to do the driving and he agrees.  Otherwise the parties have agreed about orders. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate: 

Date:  10 March 2010