BABCOCK & WADDELL
[2010] FMCAfam 1280
•25 October 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BABCOCK & WADDELL | [2010] FMCAfam 1280 |
| FAMILY LAW – Children – Parenting Orders – application for order to return child to Sydney – where there was no appearance by or on behalf of the respondent – where respondent’s lawyer sent a letter asking to attend by telephone – where attempts to call the lawyer were unsuccessful. |
| Family Law Act 1975 (Cth) |
| Applicant: | MR BABCOCK |
| Respondent: | MS WADDELL |
| File Number: | SYC 6272 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 25 October 2010 |
| Date of Last Submission: | 25 October 2010 |
| Delivered at: | Sydney |
| Delivered on: | 25 October 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms De Vere |
| Solicitors for the Applicant: | Barkus Doolan Kelly |
| Counsel for the Respondent: | No Appearance |
| Solicitors for the Respondent: | Klimek & Co |
ORDERS UNTIL FURTHER ORDER:
That the Mother forthwith return the child to Sydney.
The Father and Mother have equal shared responsibility for the child.
The Mother be restrained from relocating the residence of the child from Sydney.
The parties be restrained from removing the child from the Sydney Metropolitan area without the written consent of the other party.
The child live with the Father as follows:
5.1 In Week One, from after school on Thursday or 4:00pm and until before school Monday or 9:00am, and each alternate week thereafter;
5.2 In Week Two, from after school on Wednesday or 4:00pm until before school on Friday or 9:00am, and each alternate week thereafter;
5.3 From 9:00am on 22 December to 5:00pm on 29 December in even numbered years and each alternate year thereafter;
5.4 From 5:00pm on the Friday prior to Father’s Day until 5:00pm on the Monday following Father’s Day;
5.5 For one half of the school holiday periods as agreed between the parties, and failing agreement, for the fist half of each school holiday in even numbered years and the second half in of each school holiday period in odd numbered years;;
5.6 From 9:00am to 5:00pm on the Father’s birthday where it falls on a weekend or during school holidays or from 5:00pm to 8:00pm if it falls on a school day;
5.7 If the child is not living with the Father on the child’s birthday, then for not less than 2 and a half hours on the child’s birthday at such time as is agreed between the parties or failing agreement, from 1:00pm until 6:00pm if it falls on a weekend or during school holidays and from 6:00pm until 8:30pm if it falls on a school day;
5.8 At other times as agreed between the parties in writing, which includes by email.
The child otherwise live with the Mother and in addition, the child live with the Mother as follows:
6.1 From 22 December until 29 December in odd numbered years and each alternate year thereafter;
6.2 On the Mother’s Day weekend (if the child is otherwise living with the Father) from 5:00pm on the Friday prior to Mother’s Day until 5:00pm on the Monday following;
6.3 From 9:00am to 5:00pm on the Mother’s birthday where it falls on a weekend or during school holidays or from 5:00pm to 8:00pm where it falls on a school day; and
6.4 For not less than 2 and a half hours on the child’s birthday at such times as is agreed between the parties or in default of agreement, from 8:00am until 1:00pm where it falls on a weekend or during school holidays and from 3:30pm to 6:00pm where it falls on a school day.
For the purpose of facilitating periods the child is to live with each of the parties, the Father shall collect the child from the Mother’s residence at the commencement of the child living with him and the Mother will collect the child from the Father’s residence at the commencement of the child living with her.
In the event that the time that the child lives with each of the parties can be facilitated by a collection or delivery to preschool or school, then the parties will ensure that this changeover is facilitated at the child’s preschool or school.
The Mother have responsibility for making decisions for the non-major long-term issues relating to the child when she lives with or spends time with her, and the Father shall have the responsibility for making such decisions when the child is living or spending time with him.
Each party notify the other, as soon as possible or in any event within 24 hours, of any serious injury or illness suffered by the child whilst with that party.
Each party provide to the other the names and addresses and telephone numbers of all medical professionals who may treat the child and authorise each of them in writing to provide copies of any test results, letters or referrals, reports and letters received from other medical professionals to the other party and authorise them to discuss any aspect of the child’s health with the other party.
The parties authorise any childcare centre, preschool or school the child may attend to provide to each of the parties photocopies of reports, newsletters and announcements of centre/school activities, or otherwise pertaining to the education of the child, of if none have been made available in writing, then each of the parties shall provide written particulars, which includes by email, of such reports and/or activities to the other party within 3 days of such documents or particulars being received by that party from the school, and each party shall authorise staff members at any childcare centre, preschool and school the child may attend to discuss the child’s progress with the other party.
The child attend the [omitted] School until the completion of kindergarten.
THE COURT FURTHER ORDERS:
Pursuant to section 11F of the Family Law Act the parties are to attend a Child Dispute Conference with a Family Consultant and pursuant to section 11C of the Act the Conference is to be reportable.
The matter is adjourned to 24 November 2010 at 10am for further mention before Federal Magistrate Scarlett in Court 7A, Level 7 Lionel Bowen Building Sydney.
IT IS NOTED that publication of this judgment under the pseudonym Babcock & Waddell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT Sydney |
SYC 6272 of 2010
| MR BABCOCK |
Applicant
And
| MS WADDELL |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the Father of a little girl called [X], who was born [in] 2006, for orders against the Mother, requiring her to return the child to Sydney from Perth and restraining her from relocating the child’s residence from Sydney.
The application was returnable before the Court on Monday
25th October at 10:00 am. The matter was called, as part of a Duty List (or First Court dates List) at 10:18am. Ms De Vere of counsel appeared for the Applicant Father. There was no appearance by or on behalf of the Respondent Mother.
I noted that some documents had arrived at my chambers shortly before I went to Court but no response or affidavit had been filed by or on behalf of the Respondent. I left the matter in the list and said that I would deal with it after 11:00am. I proceeded to deal with other matters. There were seventeen matters listed before me at 10:00am on that day.
I took a short adjournment around 11:00am and retrieved the documents that had arrived at my chambers earlier. There was a covering letter from some lawyers in Perth, Klimek & Co, seeking to attend Court by telephone. I read the letter, which contained a telephone number. I did not read the attached documents, which had not been filed.
I returned to court at 11:20am and called this matter. My associate informed me that she had attempted to call the Respondent’s solicitor on three occasions over the adjournment without success. I directed that a call be placed again. The call was played in open court and a recorded message was received, indicating that the call had gone through to voicemail.
I directed that a further attempt be made to call the Respondent’s solicitor on the telephone number provided. Again, the call went through to voicemail.
I then proceeded to make the orders sought on an interim basis.
This Court has been plagued by solicitors seeking to attend Court by telephone. All too often, these requests arrive at the last minute, or in this case, on the day. In many instances, when the Court attempts to telephone the practitioner, the call does not go through to the practitioner but to a receptionist, who appears to be quite unaware that the practitioner is supposed to be appearing in Court. It is inappropriate for the Court to be put on “hold” in the middle of a busy list.
It is usually far preferable for the lawyer concerned to instruct an agent to appear. Telephone attendances are time consuming and inconvenience the Court and other practitioners who have taken the time and trouble to attend personally. If there is a good reason to attend by telephone, the lawyer concerned must give adequate and must, at a bare minimum, make himself or herself immediately available when the Court telephones.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 18 November 2010
0
1