WOLTER & WOLTER

[2015] FamCA 338

FAMILY COURT OF AUSTRALIA

WOLTER & WOLTER [2015] FamCA 338

FAMILY LAW – PARENTING – RECOVERY ORDER – where order made with warrant to issue if child not returned – where child not returned – where appropriate for warrant to issue – orders made accordingly.

FAMILY LAW – ENFORCEMENT – where previous order for security for costs – where costs assessed in specific sums – where application for costs to be paid out of security sum – orders accordingly - no orders for costs.

FAMILY LAW – PRACTICE AND PROCEDURE – where application in a case filed – where no application for final orders pending – where application seeks orders varying final parenting orders, orders varying final property orders and alleges various contraventions – where orders set out in application poor in form and nonsensical – where applicant proposes to file proper application commencing proceedings – where appropriate to dismiss application in a case – application in a case struck out and dismissed.

Family Law Act 1975 (Cth) ss 67U, 67V, 79, 117(2A)

APPLICANT: Ms Wolter

RESPONDENT: Mr Wolter

FILE NUMBER: SYC 5747 of 2009

DATE DELIVERED: 30 April 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Foster J

HEARING DATE: 30 April 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Watkins

SOLICITOR FOR THE APPLICANT: Shipton & Associates Solicitors

COUNSEL FOR THE RESPONDENT: In Person

Orders

As to the Application in a Case filed on 24 February 2015:

1. The recovery order made on 21 April 2015 issue forthwith for a period of 12 months.

2. So as to facilitate the implementation of the recovery order, the Father be restrained from attending at, upon or near the school premises attended by all three children except for the purposes of implementing changeovers as provided for in orders made on 21 December 2012.

3. The above order is an order made for the protection of the children pursuant to section 68B of the Act to which a power of arrest without warrant will attach pursuant to the provisions of 68C of the Act.

4. In the event that the Associate in Chambers is notified by the Mother’s legal representative that the subject child has been returned to her care at the close of the school day today, and notwithstanding the recovery order has issued a request will be made for the recovery order in those circumstances not to be executed except in circumstances where the Father again retains the child or children contrary to the provisions of the orders made on 21 December 2012.

5. The Mother’s costs of this application are reserved and in the event of any application for costs the Mother file and serve any written submissions within one month from today’s date and that the Respondent Father file and serve any written submissions in response within 14 days thereafter and thereafter judgment is reserved.

6. Either party has liberty to reapply as to the above orders by properly made application to the Registrar on short notice in appropriate circumstances.

As to the Application in a Case filed on 30 October 2014:

1. That costs payable by the Father pursuant to orders made on 22 September 2014 together with interest accrued thereon be paid to the Wife or as she may direct her solicitor in writing from the present funds held by the Wife’s solicitors as provided for in Order 5 made on 22 July 2014.

2. The Wife’s application for costs as to this application is dismissed.

As to the Application in a Case filed on 8 December 2014:

1. The Application is struck out and dismissed.

IT IS FURTHER ORDERED THAT:

1. Save for the question of costs as to the recovery application, all applications before the Court be dismissed.

IT IS NOTED THAT:

(A)The Father proposes to file contravention applications in relation to both final property and parenting orders in proper form supported by affidavit and

(B)That the Father proposes to seek a variation of final parenting orders made by her Honour Justice Ryan on 21 December 2012.

(C)The Father foreshadows an application under section 79A of the Act to set aside or vary property orders made on 21 December 2012.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wolter & Wolter 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 SYDNEY

FILE NUMBER: SYC 5747 of 2009

Ms Wolter

Applicant

And

Mr Wolter

Respondent

REASONS FOR JUDGMENT

1. The various applications before the court are set out below.

The Recovery Order

1. These are proceedings primarily under the provisions of section 67U of the Act which empower the Court to make a recovery order such as the Court thinks proper. In determining whether to make a recovery order, section 67U is governed by the provisions of section 67V, which relevantly provides:

   In deciding whether to make a recover order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration.

2. The primary application for determination is the mother’s application in a case filed on 24 February 2015.  In that application, she sought an order that a recovery order issue requiring the return of the child, M, born in 2004, to her and an order for costs as against the respondent father. 

3. The mother sought other orders that are not relevant for the purposes of the determination today.  The mother’s application came before the Principal Registrar on 21 April 2015. On that date, the Principal Registrar heard and determined the mother’s application for a recovery order in the father’s absence and made the following orders:

   (1)The Father return the child [M] born … 2004 (“Child”) to the Mother within 48 hours of being served with a copy of this order.

   (2)Pursuant to Section 67Q of the Family Law Act 1975 a Recovery Order issue addressed to the Marshal of the Family Court of Australia and to all Officers of the Australian Federal Police and to all Officers of the Police Forces of all the States and Territories of Australia.

   (3)Such persons are authorised and directed to find and recover the child and for that purpose, to stop and search any vehicle vessel or aircraft and to enter and search any premises or place in which there is, at any time, reasonable cause to believe the child may be found.

   (4)The child is to be delivered to the care of the Mother at the address agreed to between the person executing the Recovery Order and the Mother.

   (5)Such Recovery Order lie in the Registry until such time as the Father fails to deliver the child to the Mother.  The Warrant shall issue upon the Mother informing the Registry by filing an Affidavit stating the breach of the Orders.

   (6)A Recovery Order shall issue forthwith upon the Mother filing an affidavit setting out details of the Father’s failure to return the child including the date on which the Father was to have returned the child, the date upon which demand was made for the return of the child and that the child has not been returned confirming that the Father has retained the child or not made the child available to the Mother in accordance with the Orders dated 21 December 2012.

   (7)The Applicant’s costs are reserved.

   (8)The Application in a Case filed on 24 February 2015 is adjourned to a Judicial Duty List at 10.00am on 30 April 2015.

4. It was noted that the respondent father was called outside the courtroom on 21 April 2015 and there was no appearance by or on his behalf. 

5. Subsequent to the orders made by the principal registrar, a copy of the orders made on 21 April 2015 was served by the solicitors for the mother on the father by email.  Attached to the mother’s affidavit sworn on 28 April 2015 is a copy of that email correspondence.  The email correspondence to the father from the mother’s solicitors is in the following terms:

   We enclose herewith, by way of service on you, a copy of Orders made in the Family Court on 21 April 2015.  You will note that these include a Recovery Order which requires you to return [M] to the mother within 48 hours of service of these Orders on you. 

   We confirm that if you return [M] to school at 9:00am on Tuesday, 28^th April 2015, this is sufficient compliance with Order 1 of the Orders of 21 April 2015. 

   In the event that you thereafter take or retain [M] at times or on days which she is to live with the mother pursuant to the Orders of 21 December 2012, our client will seek the assistance of the police in returning M to her mother in accordance with the provisions of Orders of 21 April 2015.

6. The mother gives evidence that she and the father are prohibited from attending on the grounds of the B School by reason of an Inclosed Lands Act order obtained by the school as against them, presumably as a consequence of their ongoing conduct in or about the precincts of the school and both parents are required to collect the children from the school office at 3:00pm. 

7. The father’s time with the children M aged 10, and twins C and A aged 7 pursuant to the current orders during school term is from after school on Thursday until the commencement of school on Tuesday in each alternate week.

8. The mother attended at the school on 28 April 2015 to collect the three children, as provided for in the current orders.  It appears that all three children were at school that day, the father having delivered the children to the school at the commencement of the school day, as required by orders of 21 December 2012. 

9. The mother spoke to the youngest two children and also to the deputy principal of the school as the whereabouts of M were not known.  The father telephoned the mother’s mobile at 3:21pm.  Thereafter, she rang again at 3:22pm.  He did not answer.

10. The mother left a voicemail informing him that she was there to pick up the child from school and inquiring as to whether the child was with the father.  At 3:24pm, the mother received an SMS message from the father’s phone which said:

    Hi mum, I am with dad as I want to be with him.

11. Clearly, the child has not been returned to the mother’s care, as provided for in the orders. 

12. The sole issue for determination, in the context of the present matter before the Court today, is whether the recovery order should issue.  The orders made by the Principal Registrar make it plain that it should. The children have been residing with their parents in accordance with orders made in December 2012, now for over two years. 

13. The father and mother, it appears, both make complaint, one against the other in relation to various breaches of those orders.  That is only reflective of the ongoing conflictual relationship between them.

14. However, the orders made by the Principal Registrar are clear.  The child has not been returned to the mother in accordance with the orders made by the Principal Registrar and, indeed, she remains in the care of the father, as he concedes today, although the child presently is at school.  It is appropriate that the recovery order issue in accord with orders previously made.

Payment from fund preserved for costs

1. In respect to the application in a case filed on 30 October 2014.  This application filed on 30 October 2014 arises from orders made on 22 September 2014 requiring the costs of the wife to be paid and seeking an order that those costs be paid from the funds presently held by the wife’s solicitor on trust pursuant to Order 5 made on 2 July 2014. 

2. In support of that application, the wife relies upon her affidavit filed on 30 October 2014. 

3. The Court made various orders for costs as a consequence of the father’s non-compliance and other circumstances arising out of final orders made on 21 December 2012. 

4. On 22 September 2014, an order was made that the father pay the mother’s costs in the sum of $12,509. Also on 22 September 2014, an order was made that the father pay the mother’s costs, in relation to a subpoena issue, in the sum of $4,449.50. Those costs were due and payable by 31 October 2014 and those outstanding costs are presently accruing interest at the rate prescribed under the Family Law Rules 2004.

5. In previous proceedings an order preserving a fund to meet the father’s prospective liability for costs was made and there is presently held by the solicitors for the mother. A sum of $30,000 is held as surety for costs. 

6. It would have appeared reasonably obviously that once costs were assessed and payable, those costs could be paid from that fund without further order. 

7. However, for the sake of clarity and to avoid any further dispute the mother has made the present application, to which the father has filed no documents in response.  In all of the circumstances, it is appropriate that the orders for costs made on 22 September 2014 be paid from the funds held by the wife’s solicitor.  An order will be made.

Costs

1. The applicant mother seeks an order that the respondent father pay her costs of and incidental to the application. The primary presumption in relation to costs is that each party will pay their own costs, save for considerations that may arise under section 117(2A) of the Family Law Act 1975 that may cause that general rule to be displaced. The matters that are relevant under – the matters for the Court’s consideration under section 117(2A) are:

   a)The financial circumstances of each of the parties and in this regard, the final financial circumstance of each of the parties is an unknown until such time as the outstanding property is sold and the implementation and result of property orders made in December 2012 become clear.

   b)Whether any party to the proceedings in receipt of assistance by way of Legal Aid.  Not relevant in this circumstance.

   c)The conduct of the parties in relation to the particular proceedings.  In relation to this application, an application made for clarity, presumably to protect the wife’s solicitors from any complaint or otherwise by the father should the costs have been paid from the fund preserved by Rees J in her judgment in July 2014.  Other than a demand for payment of the costs by letter, the Court is informed today that there is no other correspondence or communication between the parties.

   d)Whether the proceedings were necessitated by the failure of a party to comply with previous orders. Costs orders were made, there was security for costs pursuant to the orders made by Rees J and the orders could simply have been implemented by way of a deduction from that fund.

   e)Whether any party to the proceedings has been wholly unsuccessful.  In relation to this consideration, in reality, it’s almost an order by way of declaratory relief confirming the wife’s ability or the wife’s solicitors’ ability to reimburse themselves from that fund.

   f)Whether there has been any offer.  There’s no such relevant offer made.

   g)There are no other matters as the Court considers relevant.

2. In all of the circumstances, the Court is not satisfied that the circumstances warrant a departure from the general rule. There will be no order as to costs.

Father’s application

1. The final application before the Court is the father’s application filed on 8 December 2014.  That application seeks a raft of orders that, it was conceded by the father in submissions, involve either:

   a)Variation of property orders;

   b)Variation of parenting orders; or

   c)Raise issues as to contravention of various orders by the wife relating to both property and parenting. 

2. There are no final proceedings pending.

3. None of the orders sought by the father could possibly be made as orders as they stand and to some extent, some of the orders are nonsensical. 

4. However, the Court is informed that the father, if so advised, proposes to file a formal application initiating proceedings seeking to vary the final parenting orders made on 21 December 2012 and/or, if so advised, an application initiating proceedings under section 79A of the Act, seeking to vary or set aside various aspects of the property orders.

5. Otherwise, the Court is informed by the father today that he proposes to file an application for contravention in appropriate form and that application, no doubt, will come before the Court in the usual way. 

6. In all of the circumstances, having regard to the nature of the orders sought in the application filed on 8 December 2014, that application is struck out and dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 30 April 2015.

Associate: 

Date:  30 April 2015