Tarritt and Herald

[2007] FamCA 884

FAMILY COURT OF AUSTRALIA

TARRITT & HERALD [2007] FamCA 884

FAMILY LAW – CHILDREN – Orders made at the application of the parties in the District Court of Iowa in the United States of America – Application the child spend time with mother in Australia – Child live with mother in Australia

Family Law Act 1975 (Cth)

APPLICANT: MS TARRITT

RESPONDENT: MR HERALD

FILE NUMBER: SYC 4980 of 2007

DATE DELIVERED: 25 July 2007

PLACE DELIVERED: Sydney

PLACE HEARD	Sydney
JUDGMENT OF:	Loughnan JR

HEARING DATE: 25 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Caldecott & Williams, Solicitors

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. The proceedings are adjourned in relation to an Application for Final Orders for direction and in relation to an Application for Interim Orders subject to the submissions of the parties for hearing to the Call-over of the Judicial Registrar's Duty List at 9:30 am on 12 September 2007.

IT IS NOTED

1. That unless the parties agree it is unlikely that there will be a hearing on the merits of the Application for Interim orders on the adjourned date.

IT IS FURTHER ORDERED

1. The father is to be personally served with any application filed on behalf of the applicant being an Initiating Application filed on 13 July 2007 or any Amended Application and all affidavits in support together with a copy of these orders not later than 15 August 2007.

IT IS NOTED that this judgment will for all reporting and publication purposes be known as Tarritt & Herald.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC 4980 of  2007

MS TARRITT

Applicant

And

MR HERALD 

Respondent

REASONS FOR JUDGMENT

1. These are proceedings for parenting orders, interim and final, in relation to a child, a daughter (“the child”), who is 10 years of age.  She is the subject of orders made at the application of the parties in the District Court of Iowa in the United States of America.  In fact, there were a series of orders made by that Court dealing with various issues including child support, divorce, and parenting orders.  The last of those reflecting a position agreed between the parties apparently, whereby the previous orders were varied to permit the time the child was to spend with her mother in Australia to be extended to a year, ending on the 31st of this month or 1 August 2007. 

2. That order has apparently been acted on and the mother recites in her affidavit the background facts which encouraged her, at least, to seek that order.  Now, towards the end of that period, she says, on reflection, she thinks that the child should not return to the United States at the end of the period. She filed an application for interim and final orders on 13 July 2007, and a Registrar gave leave for that application to be put before the Court on short notice provided it was served before 4 pm on 20 July 2007.  And that has not happened.

3. There is an affidavit from a solicitor saying that documents were sent by either electronic communication or post to some US lawyers on 19 July 2007. I understand the evidence would be that they are lawyers who previously acted for the father in the Iowa proceedings.  However, the Rules of Court require that an application for final orders is to be served personally, or if it is served by post, you need some evidence about its receipt, an acknowledgment of service to establish the fact. 

4. Here there is no evidence from the mother that the solicitors have instructions to accept service on behalf of the father, or that they are even still instructed by the father.  Thus the order that was made by a Registrar has not been complied with. Further, with the greatest respect, I do not think it was an order that would have enabled the Court to make any orders today in any event.  The interim order sought is that the orders of the Iowa District Court, dated 10 April 2006, be dispensed with.  I have not been told that there is an arrangement between Australia and United States or any of the States of the United States whereby an order from that Court can be registered in this jurisdiction and then dealt with in some way, let alone being dispensed with.

5. So I have some doubts about that.  Certainly, the Court has the power to make the other orders that are sought, that the child live with the mother and that the father be restrained from removing the child from Australia and so on.  They are all orders that I could make because my jurisdiction comes from the presence of the child within this jurisdiction.

6. However, one can anticipate that there will be an argument about whether the issue of where this child lives has already been determined conclusively by someone else. There is the possibility that the father might take action or seek that action be taken under the terms of the Family Law Child Abduction Convention Regulations, which is the expression in Australia of the Hague Convention on International Child Abduction.

7. Further, there is nothing urgent about the case.  There is no mention in the affidavit of any fact going to urgency except that the timetable that the mother asked the Iowa Court to put in place is about to expire. In that regard she is exclusively responsible for the timing of the application. Unfortunately, most of the facts that she relies on to support her application, applied on the day she asked the Iowa Court to make the orders.

8. I think if you went through the list of circumstances that have given rise to applications under the Hague Convention the circumstances of this case would be among the top 10. The ‘reneged one year about order’ is a popular favourite among those decisions.

9. The mother says that the child has settled well in Australia and she is doing well and, of course, Judges in this country and other countries have made observations about those arguments. 

10. Nextly, she says that the child expresses some fears about returning. Again, there is a reference in the authorities about the likely impact on a child’s wishes of a long period spent with one parent and away from the other. Next, there is evidence that the child’s brother was been released from a correctional facility at the end of June, and there is some evidence from the mother that she has been told that the boy has not been rehabilitated, that there is a very sad prognosis for him.  That is the only circumstance that has occurred in recent times that I think will be of significant relevance.

11. That is not to say that there might not be the grounds here of a perfectly good defence to an application under the Convention. Further, it might be that the father, on reflection, and on getting advice, agrees to the mother’s proposal.  However there is simply no urgency. There is no suggestion that the father has the wherewithal to kidnap the child and no suggestion that he is likely to come to Australia and impose his poor parenting on the child, or that C is able or likely to come to Australia.

12. The reason why this Hague Convention has been established between countries is because it is inherently unfair to require someone to litigate across jurisdictions. This is a case, from a forum point of view, where the parties have adopted the forum of Iowa for the purposes of their family law dispute.  Now, that might change but this has the hallmarks, of an Iowa case. 

13. For those reasons I refuse to make any orders in relation to the merits of the application.  As I say, I have some doubts about whether some of the orders can be made.  The father is entitled to proper notice.  I am going to arrange for him to have four weeks. We are still doing him a mischief, but at least I will know that he has received the documents in his own hand, and if he wants to indicate one way or another whether he is going to take part in the proceedings here or take some other action, that will give him some time to do it. 

14. I have said to the mother's lawyer that I do not think that the Court is going to be in any better position to make any definitive order, even an interim order, on the next occasion, but I will await what application or response might be filed.

15. I adjourn these proceedings in relation to the application for final orders for directions and in relation to an application for interim orders, subject to the submissions of the parties, for hearing on 12 September 2007.  I note that unless the parties agree, it is unlikely that there will be a hearing on the merits of the application for interim orders on the adjourned date. 

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

Associate: 

Date:  24 August 2007