ATREBE and ATREBE

[2009] FamCA 1301

FAMILY COURT OF AUSTRALIA

ATREBE & ATREBE [2009] FamCA 1301

FAMILY LAW – CHILDREN – Interim

Family Law Act 1975 (Cth)

APPLICANT: Mr Atrebe

RESPONDENT: Ms Atrebe

INDEPENDENT CHILDREN’S LAWYER: Mr Holmes

FILE NUMBER: SYC 6368 of 2008

DATE DELIVERED: 3 November 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Judicial Registrar Loughnan

HEARING DATE: 3 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr N Jackson

SOLICITOR FOR THE APPLICANT: Allan McEwan & Company

SOLICITOR FOR THE RESPONDENT: BJS Legal

INDEPENDENT CHILDREN’S LAWYER Slade Manwaring

Orders

IT IS ORDERED

1. That the father’s Application in a Case filed 26 August 2009 be stood over generally with liberty to restore to the list.

2. That the costs of the Independent Children's Lawyer be reserved.

3. Leave to the Independent Children's Lawyer to issue such subpoenas as he may be advised.

4. Leave to the parties and the Independent Children's Lawyer to inspect documents produced on subpoena by Dr M.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6368 of 2009

MR ATREBE

Applicant

And

MS ATREBE

Respondent

REASONS FOR JUDGMENT

1. These are proceedings for interim parenting orders.  There are interim orders in place.  There are competing applications on the one side to change those orders to provide for overnight time.  That is opposed on the other side.  There is an independent child lawyer and he quite frankly says it is one of those matters where there is a threshold issue about whether the court would intervene, there being orders in place.  The frustration for the father is that he is facing a long wait in the queue of cases and I accept very much that it is frustrating and inappropriate and sad that we cannot service in a more timely way a final hearing in relation to children’s issues.

2. The fact is that interim hearings are unsatisfactory.  The court is not in a position to make any findings of fact on a disputed issue without independent evidence that excludes one version or wholly supports another.  There is rarely expert evidence and even if there is, there is no opportunity to test it, and so there is a danger in the court interfering in those circumstances.  It is not argued by the independent child lawyer or on behalf of either of the parties, that the current orders are causing danger to a child. I appreciate the frustration for the father. The fact is that the needs of children of tender years change over time. The needs of their parents change to some extent. The court is just simply not in a position to providing updating hearings for each stage of a child’s life.

3. Would that it would be different, but it is not. Without any criticism of the father, I stand his application over generally, with liberty to restore.  It may be that at some point there is an agreed position, between two of the parties at least, that there needs to be a change in the arrangements and in those circumstances, of course, the court is obliged to look at the matter, but as it stands now, this is not a matter the court should deal with today.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate: 

Date:  7 December 2009