Byrne and Jakes

[2010] FamCA 829

FAMILY COURT OF AUSTRALIA

BYRNE & JAKES [2010] FamCA 829

FAMILY LAW – PRACTICE AND PROCEDURE – where the father has filed a Notice of Discontinuance – appropriateness of the new orders proposed by the mother

Family Law Act 1975 (Cth) ss 60CA & 60CC

APPLICANT: Ms Byrne

RESPONDENT: Mr Jakes

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

FILE NUMBER: ADC 1977 of 2009

DATE DELIVERED: 13 SEPTEMBER 2010

PLACE DELIVERED: ADELAIDE

PLACE HEARD: ADELAIDE

EX TEMPORE REASONS OF: BURR J

HEARING DATE: 13 SEPTEMBER 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:	MS READ
SOLICITOR FOR THE APPLICANT:	JO-ANNE MILEN

COUNSEL FOR THE RESPONDENT:	NO APPEARANCE
SOLICITOR FOR THE RESPONDENT:	NO APPEARANCE

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	MRS LINDSAY
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	LEGAL SERVICES COMMISSION

Orders

UPON NOTING the Notice of Discontinuance filed by the father on 18 August 2010 in which he discontinues the entirety of his Response filed on 29 May 2009

IT IS ORDERED THAT:-

1. All existing current orders be discharged.

2. The mother have sole parental responsibility for the child J (“the child”) born … October 2001, including responsibility for making decisions permitting the child to travel overseas without seeking the permission of the father for such travel and the mother shall be entitled to make an application for the child’s passport without the need for the father to sign same UPON CONDITION that the mother is restrained and an injunction is hereby granted restraining the mother from altering the child’s place of residence to a country other than Australia without further leave of the Court or the written consent of the father.

3. The child live with the mother.

4. There be no order for the father to spend time with the child.

5. The appointment of the Independent Children’s Lawyer be discharged.

6. All applications be otherwise dismissed and removed from the pending list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1977  of 2009

MS BYRNE

Applicant

And

MR JAKES

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I have before me the 1^st Day of a Less Adversarial trial of the amended Application of the mother filed on 9 August 2010.  Annexed to that document are a raft of orders sought by the mother, but specifically they are as to the discharge of orders made on 20 January 2005 and then orders that she have sole parental responsibility of the child J born in October 2001 and that the child live with her.  She asks that no orders be made favouring the father in spending time with the child.  That was the father’s application contained in his Response filed on 29 May 2009.  In fact he sought somewhat more extensive orders than that and indeed asked the Court to make an order that the child live with him.

2. A comprehensive Family Report has been prepared in this matter and it is dated 16 June 2010.  The issues that were in dispute between the parties were serious issues and included allegations that implicated the father in a range of sexual abuse allegations.  This led the report writer Dr A to express a number of concerns in relation to the child spending any time with her father.  Her view in that regard was not just as to her concern about the sexual abuse allegations, but as to the inability of the father to recognise or be able to accommodate the child’s emotional and psychological safety, wellbeing and needs.  It was Dr A’s recommendation that the child not spend any time with the father.  She crafted a suggested approach to try and deal with the possibility of the father spending some time with the child at some time in the future, but it clearly was to be an exercise that would take some time and some effort.

3. All of that has now become unnecessary as the father filed a Notice of Discontinuance on 18 August 2010.  He discontinued in its entirety his Response filed on 29 May 2009.  He thus seeks no orders from this Court.

4. I have no difficulty therefore in making the orders that the mother sought in her aforesaid amended Initiating Application but the mother in fact seeks more than that.  The orders that she seeks are contained in Minutes of Order handed to me this day and the dramatic difference between her amended Initiating Application and those orders relates to her plea that I make orders permitting her to take the child overseas for the purposes of recreational travel.  I am informed that it is not the mother’s intention to relocate overseas with the child.  That would require a particular application which would need to be served upon the father.

5. However, given the contents of the Family Report, the father’s discontinuance of the proceedings and the information I have received today that Ms Milen, who acts for the mother, advised the Court at a procedural hearing on 8 September 2010 and the father’s solicitors by mail forwarded to them of the intention to seek those additional orders, I deem it appropriate to make the orders sought.  Those additional orders have the support of the Independent Children’s Lawyer.  I am prepared to make those orders on the basis that the mother does not treat them as an opportunity to relocate with the child overseas.  The mother has indicated her willingness to accept an injunction in that regard.

6. Given the father’s discontinuance of the proceedings it is not necessary for me to traverse all of the detailed provisions of Part VII of the Act.  Suffice to say I am satisfied that the orders that I am prepared to make represent the child’s best interests.  That is the obligation imposed upon the Court by Section 60CA of the Act. 

7. It is not necessary for me to detail my findings pursuant to Section 60CC of the Act.  I am satisfied, on all of the information available to me, but in particular the aforesaid Family Report, that the orders as sought by the mother will represent the child’s best interests and no further exploration is necessary or required of me.

I certify that the preceding seven (7) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr delivered on 13 September 2010.

Associate: 

Date:  15 September 2010