Waters and Olsen

[2007] FamCA 257

FAMILY COURT OF AUSTRALIA

WATERS & OLSEN [2007] FamCA 257

FAMILY LAW - CHILDREN - With whom a child lives - Relocation of  9 year old boy to Canada – final orders by consent – intention of this court in making an order that the parties obtain mirror orders in British Columbia is not to be regarded as a relinquishment by the Family Court of Australia of its jurisdiction to make orders in relation to this child in the future

Family Law Act 1975: ss: 65DA(2), 62B.

APPLICANT: Mr Waters

RESPONDENT: Ms Olsen

INDEPENDENT CHILDREN’S LAWYER: Donald Lampe

FILE NUMBER: BRF 16028 of 2006

DATE DELIVERED: 14 March 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 5, 6, 7, 9, 13 & 14 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms M. Vohra

SOLICITOR FOR THE RESPONDENT: Victoria Legal Aid

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr R.P. Hutchins

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Donald S Lampe

Orders

1. That there be orders in terms of the Minutes of Consent Orders, as amended, signed by the parties and dated 14 March 2007 (“the Minute”).

IT IS DIRECTED:

1. That all subpoenas tendered in these proceedings be returned (to the party on whose behalf the exhibit was tendered) at the expiration of one calendar month unless an appeal is lodged.

2. That all exhibits tendered in these proceedings be returned (to the party on whose behalf the exhibit was tendered) at the expiration of one calendar month unless an appeal is lodged.

3. That the Minute be placed upon the Court file and marked “Exhibit A”.

4. That the solicitors for the wife do engross the Minute and provide a clean, duly certified copy of the same (“the Copy”) to the Registry of this Court by 12 noon on Friday 16 March 2007.

5. That upon delivery of the Copy to the Court, the within orders be extracted and the Copy be attached thereto.

6. That my reasons for judgment delivered this day be transcribed and when transcribed the original be placed on the court file and a copy sent to each of the parties.

BY CONSENT IT IS ORDERED:

1. That all previous orders with respect to the child A born in November 1998 be discharged from 4.00 pm on 23 March 2007.

2. The parties have equal shared parental responsibility with respect to the long term care, welfare and development of the child.

3. The child live with the wife.

4. The wife be permitted to relocate the child’s residence to Canada as soon as practicable and conditional upon prior compliance by the wife with paragraph 16 hereof.

5. That the husband spend time with the child as follows:-

   (a)From 5.00 pm Friday until 5.00 pm Sunday on each weekend until the wife and child leave for Canada and from the commencement of the Easter school term holiday until 48 hours prior to the wife leaving for Canada should she not already have done so, with changeover to be at the local Park;

   (b)upon the wife and child relocating to Canada:

   (i)in Canada during the Canadian long summer school vacation each year for a period equalling four (4) weeks as nominated in writing by the husband either as a consecutive period of four (4) weeks or on a week about basis or as otherwise nominated in writing by the husband; and

   (ii)in Australia for a period of four (4) weeks during the Christmas/New Year period each year such period to coincide with the child’s last week of school term and the Canadian school term holidays;

   (c)as may be further or otherwise agreed between the parties from time to time.

6. The husband communicate with the child as follows:

   (a)at least once per week by telephone, and on the child’s birthday and the husband’s birthday, to a landline telephone number provided to him by the wife, with the husband to initiate the call and to be responsible for the costs of the call;  and

   (b)by e-mail with the wife to ensure an e-mail account is set up in the child’s name within fourteen (14) days of her arrival in Canada pursuant to paragraph 4 of these Orders and to provide the husband forthwith with details of the child’s e-mail address once the account is set up by her;

   (c)by letter, card and package;

   (d)by use of a webcam with both parties to do all things necessary to set up this facility;

   (e)as may be further or otherwise agreed.

7. For the purpose of sub-paragraph 5(b)(i) hereof the husband provide the wife with at least one month’s prior written notice of the dates he proposes to spend time with the child in Canada each long summer school vacation.

8. For the purpose of sub-paragraph 5(b)(ii) hereof the wife provide the husband with at least one month’s prior written notice of the dates the child will be travelling to Australia during the Christmas/New Year period each year.

9. That the wife be solely liable for and pay the costs of the child’s return air fare to Sydney, Australia and, until the child turns 14 years old, she be solely liable for and pay the costs of a return airfare for an accompanying adult to Sydney, Australia for the purpose of sub-paragraph 5(b)(ii) herein.

10. That the husband be solely liable for and pay the costs associated with his time with the child in sub-paragraph 5(b)(i) herein.

11. Should the husband wish to spend time in Canada with the child beyond the time in sub-paragraph 5(b)(i) herein he provide the wife with at least one month’s written notice of proposed dates and such times be then by agreement with the wife.

12. Should the child travel to Australia for periods beyond the time in sub-paragraph 5(b)(ii) the wife provide at least one month’s written notice to the husband and he spend time with the child as may be agreed with the wife such agreement not to be unreasonably withheld by the wife.

13. That each party keep the other informed of their residential address and landline and mobile telephone numbers and any change thereto within 48 hours of any such change.

14. That during times the husband spends with the child pursuant to these Orders:

    (a)The husband provide the wife with a mobile telephone number upon which the wife can contact the child and particularly to speak with the child on Christmas Day; and

    (b)should such time be in Canada the husband, his servants and agents be and are hereby restrained from removing or attempting to remove the child from Canada.

15. The wife’s solicitors serve a copy of these Orders upon the Australian Federal Police as soon as practicable noting the Orders of 8 May 2006 are discharged by these Orders.

16. That prior to the wife being permitted to relocate the residence of the child to Canada pursuant to these Orders and in any case on or before 4pm on 22 March 2007;

    (a)the wife cause the sum of $27,250 (AUS) to be retained in an interest bearing trust account in the name DONALD S LAMPE as trustee for the wife (“the bond”) until 2 November 2012.

    (b)Mr Lampe as trustee may deduct bank fees and charges and his administration fees from the bond;

    (c)Upon any alleged default by the wife of her obligations pursuant to sub-paragraph 5(b)(ii) or paragraph 9 of these Orders then the husband have liberty to apply to the court in Australia on short notice to remove the required amount of money necessary to give effect to these Orders including paragraph 18 from the bond including any legal costs he may have incurred or may incur;

    (d)That on 2 November 2012 the bond or the amount remaining of the bond be returned to the wife.

17. The wife cause registration of these Orders in the Provincial Court of British Colombia, Canada, pursuant to Part 3 of the Family Relations Act Canada as soon as is possible or no later than 21 days after the child would be considered habitually resident in Canada pursuant to that Act, whichever is the earlier date.

18. In the event of any default by the wife with respect to paragraph 5(b)(ii) without any prior written agreement with the husband of these orders the child be forthwith returned to Australia to live and there be liberty to the husband to apply with respect to this Order to the Court upon short notice.

19. The wife authorise the child’s school to provide the husband with copies of all school reports and notices at his expense, if any, and ensure the husband’s name and contact details are recorded at any school the child may attend as the child’s father.

AND IT IS NOTED by the Court that as the parents have equivalent parental responsibility for the child, the husband is at liberty to contact the child’s school or doctors at any time as is the wife.

1. The child’s surname remain “the father’s surname” and this be the name under which he is enrolled at school.

2. The Independent Children’s Lawyer meet with the child as soon as possible to explain these Orders to him.

3. The appointment of the Independent Children’s Lawyer be discharged on

   
   

   11 April 2007.

4. 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 the 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.

NOTATION

A.       The child’s passport held by the Court be returned to the wife forthwith.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: BRF 16028 of 2006

Mr Waters

Applicant

And

Ms Olsen

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. This matter comes before me as the final hearing of competing applications concerning the parties’ child, born in November 1998. 

2. The mother is represented by Ms Vohra of counsel, the father appears on his own behalf, and the interests of the child are represented by the independent children's lawyer for whom Mr Hutchins of counsel appears. 

3. This is the sixth day of the final hearing.  Yesterday afternoon I was advised that the parties were close to resolving the matter privately and indeed that is what has occurred.  The matter has resolved and I have made orders by consent.  I congratulate the parties. 

4. I am satisfied, having heard extensive evidence in the matter and read all of the documents upon which the parties rely, that the orders are in the best interests of the child.  The orders provide that the mother be able to relocate the child’s residence to Canada where she proposes to live on a nearby Island.  The orders provide for the father to spend fairly extensive periods of time with the child, twice yearly, once in Australia and once in Canada. 

5. A significant factor in the orders is a bond which is to be provided by the mother in the sum of $27,250 and those moneys are to be set aside to be called upon if necessary in the event of alleged default by her in accordance with the orders. 

6. The independent children's lawyer asked me to make the orders.  He considers them to be in the best interests of the child.  However, he wanted recorded that the provision of the bond of more than $27,000 was a very essential element in his support of the child going to live in Canada.  He says that it is only because the mother’s compliance with orders, that the child will be able to spend time with the father in Australia and in Canada, is safeguarded by the bond that the independent children’s lawyer is prepared to support the relocation at all.  His view accords with my own assessment of the evidence thus far. 

7. The parties are aware of the provisions of the Hague Convention in relation to international child abduction.  The provisions in that Convention are incorporated into the law of Australia pursuant to regulations and deal with enforcing contact or access orders.  Additionally, the orders which the parties agree to provide for mirror orders to be made in the Provincial Court of British Columbia, Canada, pursuant to Part 3 of the Canadian Family Relations Act.  The parties have agreed that that is for the purpose of enforcement. 

8. The parties have acknowledged to me that the mirror orders being made in Canada is not intended to deprive this court in Australia of jurisdiction to make orders in relation to the child in the future.  Of course, neither does it confer exclusive jurisdiction on this court to do so.  That will have to be a matter looked at if and when the need arises. 

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

Associate: 

Date:  27 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as WATERS & OLSEN