Berrun and Gele

[2010] FamCA 713

FAMILY COURT OF AUSTRALIA

BERRUN & GELE [2010] FamCA 713

FAMILY LAW – CHILDREN – Duty list matter – Application to review Principal Registrar’s Orders – Where consent orders were made in New Zealand and registered in this court’s jurisdiction – Where the mother sought to cancel registration of the consent orders – Dispute about the children’s time in New Zealand – Insufficient reasons to interfere with a final order – Application dismissed

APPLICANT: Ms Berrun

RESPONDENT: Mr Gele

INDEPENDENT CHILDREN’S LAWYER: Ms Cruttenden, Solicitor

FILE NUMBER: BRC 3336 of 2008

DATE DELIVERED: 19 July 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 19 July 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Kalle, Solicitor of DK Law appearing for the Applicant Mother

COUNSEL FOR THE RESPONDENT: Mr Page of Senior Counsel appearing for the Respondent Father

SOLICITOR FOR THE RESPONDENT: Harrington Family Lawyers

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Cruttenden, Solicitor of Legal Aid Queensland appearing as the Independent Children’s Lawyer

Orders

IT IS ORDERED THAT:

1. The Mother’s application for review of the Orders of Principal Registrar Filippello dated 1 April 2010 is dismissed.

2. The Mother’s Application in Form 2 filed 28 April 2010 be adjourned for a Judicial Duty short cause day hearing at 10.00 am on 2 November 2010 at the Brisbane Registry of the Family Court.

3. The parties to file and serve by 4.00 pm on 13 October 2010 a case outline document containing a list of documents required for the short cause hearing on

   
   

   2 November 2010.

4. The Father to file and serve written submissions relating to costs of this application within fourteen (14) days of the date of this Order and the Mother to file written submissions on costs fourteen (14) days thereafter.

5. Costs reserved.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3336 of 2008

MS BERRUN

Applicant

And

MR GELE

Respondent

REASONS FOR JUDGMENT

1. The parties resided in New Zealand with their children, D, born in April 1998, and C, born in January 2000 up until the first half of 2008.

2. The parties reached consent orders which were signed off by Ellis J in the Family Court of New Zealand on 12 February 2008.  The effect of those orders was that the mother would be able to reside with the children in Australia and there were various other detailed provisions.

3. Those orders were registered in this court on 15 April 2008.  Those orders provided that in any further litigation, the appropriate jurisdiction was to be the courts of New Zealand.

4. Whilst that order was in force, for reasons that escape me, the mother instituted proceedings by way of an initiating application in this Court on 2 November last year.  In that application, she sought both interim and final orders.

5. The interim orders were that the children are to spend time with, and communicate with the father as agreed between the parties.  The comment I’d make about that, without sounding too cynical, is the parties have been litigating for many, many years.  Although there were consent orders made in February 2008, they seemed to find a wide range of issues upon which to dispute the factual matrix.

6. The mother says that if they can’t agree, then the children should spend 10 days at the end of year holiday period to include Christmas Day in even numbered years, and for one week at the end of first term school holiday periods;  10 days during the end of the third term holiday periods - and I’m finding it difficult to read because quite a considerable number of amendments had to be made to this application – such times to occur in Australia, continuing on two consecutive day blocks, with one day break etcetera.

7. She also then sought final orders that the registration of the consent orders be cancelled, the children live with her and a whole series of other provisions about equal shared parental responsibility, and the time with the other parent largely seems to replicate the proposals made in the orders sought on an interim basis.

8. The matter came before the Principal Registrar, Registrar Filippello.  For reasons which have now only been published, but which I understand were delivered orally on 1 April 2010, the Registrar made interim orders which, in large measure, replicated the registered orders of April 2008.

9. In particular, the children were to travel to New Zealand from 2 April to 18 April, from 18 September to 3 October, and from 28 November to

   
   

   23 December this year.  And the father was to see the children for a period of a week, in the June-July holidays.  And there were to be other proposals as contained therein.

10. As I say, that order was made on 1 April.  An application in a case was filed on 28 April.  In that application, the mother seeks an order that orders 2, 3, 4, 5 and 6 of the orders made by the Principal Registrar on 1 April be dismissed.  Well, I turned to consider orders 2, 3, 4, 5 and 6.  Order 2 was the order that I just referred to, giving the specified times.  Order 3 seems to be confined to contributing equally to the cost of the children’s airfares.  Order 4 is a

    
    

    non-denigration clause.  Order 5 is not taking the children to further psychological or psychiatric assessments, without having first consulted the other parent, and order 6 was the mother or the father may arrange for the children to attend a general medical practitioner.

11. Why on earth the mother would seek to discharge paragraphs 3, 4, 5 and 6 for the moment, escapes me.

12. The only new material since the matter was before the Principal Registrar is a report of Ms B.  I had regard to the terms of that report.  In paragraph 10, for the child D, she noted when he was asked if he agreed with the current consent order, and whether he had his own ideas about spending time with his father, D was clear and forthright and stated:

    “What I’d like to do is not go to New Zealand and see Dad in the June-July holidays.  In September-October holidays, I’d like Dad to come over to Australia and visit us.  In the Christmas holidays I would just like to go for a week to New Zealand, ten days at the most.  For the autumn holidays, which usually include the Easter break, I’d like it so that I could maybe go to New Zealand, or that maybe Dad could come to Australia.”

13. At paragraph 18, she recounts what the daughter said as to spending time with her father.  To some extent they seem to be replicating the views of D.

14. Under the heading, “Future Directions”, Ms B observes it may be fortuitous of the parents to consider concomitant parenting arrangements for both the children that will separately meet their developmental and specific needs.  It is thus possible that such parenting arrangements may see the children’s travel to New Zealand reduced as they have expressed, but D’s time with his father longer than his sister, when he does travel to New Zealand to enable him to have respite time from his sister.

15. It would also be fortuitous for the parents to consider D’s expressed wishes to spend holiday time with his friends here in Australia, in recognition of his age, and appropriate developmental needs to develop and strengthen his peer and social networks.

16. Paragraph 43:

    “In recognition that both households employ differing parenting styles, it would appear that this indeed needs to be factored into the frequency and length of time [C] spends with her father, in order to enable her to transition between the two households as well as possible, as it does not appear that the parenting parties are willing to come to some consensus or common ground in regard to establishing any consistent and common responses and management techniques, in regard to [C’s] needs in relation to her Asperger’s Syndrome.”

17. I’ve received a summary of argument document from the applicant mother, which I have perused.  Similarly, an outline of argument for the respondent father.

18. The point was taken that if the court simply made orders as sought in the

    
    

    form 2 application which has been filed, it wouldn’t advance the mother’s case at all, because the effect of that would be that the orders of April 2008 registered in this court, would come into effect.

19. I do find the form 2 to be somewhat misleading.  I don’t suggest that it was deliberately so.  I do note that there’s a complaint that it wasn’t served until about 21 June, which I find concerning.  The orders have been in place for some two and a half years.  They were made in February 2008.  I will give the applicant the benefit of the doubt for the present time, by not making orders in terms of the form 2 which would be a technicality, because then we would virtually revert to the status quo.  I have already particularised how I see no point in discharging the orders sought under review.

20. For the present purposes, the only relevant order is paragraph 2 of the Principal Registrar’s orders of 1 April.  The children, under those orders, are to go to New Zealand for two weeks in the September-October holidays.  The mother is proposing they have ten days, I think, at Christmas – and the children said it was ten days.  I don’t see that anything major hinges on the fact whether they go in September-October, or whether they go in December.

21. The major holiday is for 25 days from presumably the commencement of the school holidays, through until Christmas Day.  One ponders whether they have to return by aircraft from New Zealand on Christmas Day.

22. This matter is not in my docket.  It is a duty list day, but I will list it for a one day hearing before myself for 2 November, at which time I will make a ruling on the Christmas holidays, and do the best I can with any other arrangements.  I urge the parties to reach agreement, but that’s said more in hope than realistic expectation.

23. The difficulty with the mother’s case, as presently framed, goes back to a case that was commonly cited many years ago of C’s case.  Later on, Cowling’s case replaced it but the principle remains the same.

24. A court does not lightly interfere with final orders.  I stress, final orders, made by consent two and a half years ago.  That’s the position I am faced with.  The medical reports that have been produced have not been tested.  There seems to be a variation in the opinions expressed by the various experts.

25. The law has always been that on an interim basis to interfere with a final order there has to be some immediate compelling reason.  Here, the children are going to see their father for 15 days some time this year.  The mother proposes already they go for 10 days.  I see there is an insufficient compelling reason why I would interfere with the orders made by Principal Registrar Filippello, and on that basis, I dismiss the application for review.

26. The matter will be adjourned for further hearing to 2 November.  I am not, repeat not, inviting a welter of additional material.  The amount of material I was asked to read for today’s hearing, which under the procedural requirements has to be limited to two hours, was simply too burdensome.  It would take any judicial officer more than two hours to simply read all of the material that I was asked to read.

27. Fortunately, I had read much of the material in anticipation, because I saw the size of the file and the length of time, and the issues involved.  I am satisfied that I have understood and appreciated the various legal submissions.  I am comforted in the determination I have made, in that it is supported by the Independent Children’s Lawyer, who sees no merit in the application for review.

28. So the matter will be adjourned.  It will be done on the papers, on 2 November, and the parties can file 14 days prior to then, a case outline document indicating the material they want me to read.  Please consider that I don’t like reading affidavits that replicate what has already been in other affidavits.  So if you want me to read more than one affidavit, indicate what paragraphs.     
    The matter can be taken from there.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  19 July 2010