Bassler and Norton
[2010] FMCAfam 250
•11 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BASSLER & NORTON | [2010] FMCAfam 250 |
| FAMILY LAW – Children – interim orders – suspension of earlier orders – best interests of child. |
| Family Law Act 1975 |
| Applicant: | MS BASSLER |
| Respondent: | MR NORTON |
| File Number: | SYC 7560 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 11 March 2010 |
| Date of Last Submission: | 11 March 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 11 March 2010 |
REPRESENTATION
| Solicitors for the Applicant: | Eleanor Murphy & Company |
| Solicitors for the Respondent: | No Appearance by or on behalf of the Respondent |
ORDERS
UNTIL FURTHER ORDER Order 2 made on 23 September 2005 is suspended.
The application is listed for final hearing at 10:00 a.m. on Friday
30 July 2010.
The applicant is to pay the setting down fee or obtain a waiver by Friday 17 July 2010.
The parties are to file and serve all affidavit material upon which they seek to rely by Friday 17 July 2010.
Liberty to apply on three (3) days notice.
The applicant is to inform the respondent by email of the hearing date and of the orders made today within seven (7) days.
IT IS NOTED that publication of this judgment under the pseudonym Bassler & Norton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
SYC 7560 of 2009
| MS BASSLER |
Applicant
And
| MR NORTON |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for interim orders suspending two contact orders made on an undefended basis in the Family Court of Australia on
23rd September 2005. The orders provided for the respondent father to spend time with the child of the marriage, a boy who was almost five years old at the time when the orders were made, in Australia on a graduated basis until the boy turns ten, and then to take him out of Australia, to either Brazil or Switzerland, for a period of three weeks each year.
The mother claims that the orders are no longer appropriate or in the child’s best interests, due to the lack of contact between the father and the child and the child’s particular medical condition.
Background
The parties were married in Switzerland in 1996 and resided in Switzerland and later in Brazil. They adopted a child in Brazil, the respondent’s native country. That child is the subject of this application.
The applicant and respondent separated in September 2002. The applicant obtained an interim custody in respect of the child from the Sao Paolo Family Court in Brazil. The parties reached an agreement in March 2003 that provided that the applicant would have custody of the child.
The applicant left Brazil with the child in October 2003, with the consent of the respondent, and returned to Australia. She has lived in Australia ever since.
The applicant deposed in her affidavit of filed on 10th December 2009 that the respondent would attempt to talk to the child over the telephone from time to time between November 2003 and June 2004, but without much success, as the child was not able to speak properly until he reached the age of four. She also deposed that the respondent sent some items to the child prior to his fourth birthday in September 2004; there was no communication after that.
There were proceedings between the parties in the Family Court in 2005 which led to the making of the orders that are now the subject of this application.
The applicant has since remarried, and she deposes that her present husband has a close and loving relationship with the child.
The event that precipitated this application is the sending of an email by the respondent to the principal of the child’s school on
2nd September 2005. The email, a printout of which is annexed to the applicant’s affidavit, says in part:
As you probably know, for the last five years I have been prevented from having any contact with my son and I am not allowed to bring him to Brazil, where he was born, to spend some time with his Brazilian family. However, in 2010 (the child) will turn 10 years, and after this occasion, the Australian Court has guaranteed my rights to bring him to Brazil during his vacations. Naturally, I am preparing everything in order to have my paternal rights guaranteed.[1]
[1] Annexure “H” to the applicant’s affidavit filed on 10 December 2009.
Submissions and Evidence
The applicant has filed an affidavit by Dr D, a specialist paediatrician, who has been treating the child for some time. Dr D has diagnosed the child as suffering from ADHD and high functioning autism. He also believes that the child has exhibited features suggestive of Obsessive Compulsive Disorder.
It is Dr D’s view, as set out in his affidavit that the child will need to have special support for his developmental and behavioural issues and will be at risk for years to come. Dr D counsels against the idea of the respondent removing the child from Australia, stating that:
· It would not be appropriate for a 62 year old man to take over the parenting of a nine year old boy whom he does not know and with whose developmental issues he is not familiar;
· The child would not want to go with his father, as there has never been any attachment;
· The father has no knowledge of the child’s developmental and behavioural difficulties;
· If the father seeks contact with the child Dr D is of the view that the father should undergo psychiatric assessment to consider whether it would be of benefit for the child to see him;
· It would be negligent even to consider the possibility of removing the children from his family home.
It was submitted on behalf of the mother that the previous orders should be suspended, as not being in the child’s interests. The mother has fears that the father will arrive in Australia unannounced and seek to enforce the orders and even remove the child from Australia, notwithstanding that he has had no contact at all with the child for years.
The respondent has not attended Court, nor has he filed a response or an affidavit. On the morning of the hearing he sent the applicant’s solicitor an email, advising:
I would like to inform you that I will not attend to the court meeting set for tomorrow March 11, 2010, at 10:00AM, since, even though you have been notified of the court order on February 8, 2010, it only came to my knowledge on the evening of March 08, 2010.
From this fact, I deduce that there was an intention to retrench (sic) my defense, since the impossibility, on such short notice, for me to travel to Sydney or even to constitute an attorney.
I kindly ask you to inform the court of this communication, for the due and proper arrangements.
Conclusions
The respondent gave no explanation as to why he only received notification of the orders on 8th March, when the Court had made orders on 8th February 2010. He gave no explanation as to why it was not possible for him to arrange a lawyer to appear, and in that regard I note that he was previously represented by a lawyer based in
Sydney. He did not ask for an adjournment.
Accordingly, I took the view that the interim hearing should proceed.
The applicant seeks interim orders suspending the operation of the following orders made on an undefended basis in the Family Court of Australia on 23rd September 2005:
2. That [X] have contact with the Father in Australia:
ON THE FIRST CONTACT VISIT after the date of these orders
(a) for two hours a day for four days;
(b) for four hours a day for the next four days; and
(c) for the next three days and nights being three successive overnight visits in Sydney.
ON SUBSEQUENT VISITS:
(a) for four hours a day for two days and then
(b) for one week following those days overnight in Sydney during [X]’s school holidays and
(c) at such other times as are agreed upon between the parties when the father is in Sydney
until [X] attains the age of 10 years;
3.THAT when [X] attains the age of 10 years [X] to have contact with the father in Brazil or Switzerland for three weeks in any year during [X]’s school holidays as agreed between the parties PROVIDED THAT the Father will, prior to [X] leaving Australia provide a security bond to the Mother in cash to be held in the Trust Account of the Mother’s solicitor in the sum of $100,000.00 against his return and will sign all necessary permissions and documentation in respect of Brazilian or Swiss law to ensure his return to Australia.
Order 3 does not become operative until the child attains the age of
10 years. He does not do so until 27th September 2010. Whilst there is some evidence in his email to the school principal that he seeks to exercises his rights under the order once the child attains the age of 10, there is no evidence that he seeks to remove the child from Australia before that date, even if the order permitted him to do so. Accordingly, there is no justification for an interim order suspending an order that will not come into force for another six months. The Court is in a position to list the matter for final hearing before that date.
Order 2 is a different matter. It contains a program of time with the child to take place in Sydney, and it is currently in force. As the child has not seen or spoken to the father for a number of years, on the mother’s affidavit evidence, it seems clear that the proposed program would need substantial reconsideration before any resumption of relations between father and child.
Again, the affidavit of Dr D describes a diagnosis of autism and possible Obsessive Compulsive Disorder, which would cause a considerable degree of concern about the child spending time with a person whom he effectively does not know. Whilst Dr D’s evidence has not been tested by cross-examination, it stands unchallenged at this stage.
I am of the view that it would not be in the best interests of the child if the program of time with the father as set out in Order 2 were to be implemented at this stage, after such an effluxion of time. The arrangements need to be revisited.
I propose to make an order suspending the operation of Order 2 made on 23rd September 2005 until further order. I will list the application for final hearing on Friday 30th July 2010.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Scarlett FM
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