Anton and Jarling

[2010] FamCA 27

FAMILY COURT OF AUSTRALIA

ANTON & JARLING [2010] FamCA 27

FAMILY LAW – CHILDREN – Urgent application to vary parenting orders whilst appeal pending – Need to show change of circumstances of some substance

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Gotch & Gotch, [2009] FamCAFC 3
Miller & Harrington [2008] FamCAFC 150
Pelerman (2000) FLC 93-037
Rice and Asplund (1979) FLC 90-725

SPS v PLS (2008) FLC 93-363

APPLICANT: Ms Anton

RESPONDENT: Mr Jarling

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 8341 of 2009

DATE DELIVERED: 25 JANUARY 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 20 JANUARY 2010

REPRESENTATION

THE APPLICANT: IN PERSON

COUNSEL FOR THE RESPONDENT: MR STRUM

SOLICITOR FOR THE RESPONDENT: TAUSSIG CHERRIE & ASSOCIATES

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MR SCHETZER

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: SCHETZER CONSTANTINOU

Orders

1. That the applications of the mother filed on 4 January 2010 and 7 January 2010 are dismissed.

2. That all questions of costs are reserved.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8341  of 2009

MS ANTON

Applicant

And

MR JARLING

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I am asked by Ms Anton to vary parenting orders made on 21 December 2009.  Mr Jarling opposes the application and seeks its summary dismissal.  The simplicity belies the complexity.

2. I propose to dismiss the mother’s application.  These are my reasons.

3. The mother and father were in a relationship from which two children were born.  The immediate proceeding relates to those children who are aged 12 and 7 years.  There is a financial dispute between the parties as well which complicates the picture.  There, the dispute is apparently about separation and whether Part VIIAB of the Family Law Act 1975 (Cth) (“the Act”) applies.

4. On 21 December 2009, I made orders that the children live with the father on an interim basis and that the mother spend time with them in the presence of some named adults.  The precise details of the time with the mother do not affect what I am asked to determine here but there is little doubt that pending a hearing on 5 February 2010, the time between mother and children was limited. 

5. On 30 December 2009, the mother filed a Notice of Appeal indicating that she was seeking leave to appeal against the orders.  The handwritten notice said:

   The orders made on 21 December 2009 were based on false evidence from the respondent and his witness [Ms M] and the applicant had not had the opportunity of filing an amended response to the amended initiating application filed on behalf of the respondent on 7 December 2009 prior to the hearing on 21 December 2009.

6. My only observation of that was that it was not suggested by counsel who appeared on behalf of the mother that…