Cairns and Bowler

[2007] FamCA 1039

FAMILY COURT OF AUSTRALIA

CAIRNS & BOWLER [2007] FamCA 1039

FAMILY LAW – CHILDREN – School holidays – Interim time spent with orders

Family Law Act 1975 (Cth)

APPLICANT: MR CAIRNS

RESPONDENT: MS BOWLER

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 8764 of 1998

DATE DELIVERED: 30 AUGUST 2007

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 30 AUGUST 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

COUNSEL FOR THE RESPONDENT: MR TURNER

SOLICITOR FOR THE RESPONDENT: VICTORIA LEGAL AID

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MR CRABTREE

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: DONALD S. LAMPE

ORDERS

1. THAT the further hearing of this matter be listed before Dessau J., as a less adversarial hearing and be fixed for a two (2) day primary defended hearing on 15 and 16 October 2007.

2. THAT paragraph 3(b) of the orders pronounced 14 February 2006, and any consequential order be discharged.

3. THAT the children … born … September 1992, … born … January 1995 and … born … February 1997 spend time with the wife in the forthcoming Victorian September school holiday period from Thursday 20 September until Wednesday 3 October (inclusive).

4. THAT for the purposes of Order 3 hereof the wife be responsible for the purchase and payment of air fares for each of the children from Melbourne to Brisbane and otherwise the husband be responsible for the purchase and payment of air fares for each of the children from Brisbane to Melbourne.

5. THAT to facilitate the air travel arrangements each of the parents are to deliver, in proper time, the children to their airport of destination.

6. THAT on or before Thursday 27 September 2007 the husband make, file and serve:

   (i)      the trial affidavit upon which he intends to rely;

   (ii)      any other relevant affidavits upon which he intends to rely;

   (iii)     an updated Form 13 financial statement.

7. THAT on or before 5 October 2007 the wife make, file and serve:

   (i)      the trial affidavit upon which she intends to rely;

   (ii)      such further affidavits upon which she intends to rely;

   (iii)     an updated Form 13 financial statement.

8. THAT any other affidavit or material to be relied upon by the Independent Children’s Lawyer be filed and served upon all parties on or before Friday 21 September 2007.

9. THAT any updated application by the husband or response by the wife, for final orders sought, be filed and served no later than Friday 21 September 2007.

10. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to all parties.

11. THAT pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure “A” and these particulars are included in these orders.

IT IS NOTED

A.THAT all parties have been advised that Her Honour Justice Dessau may list this matter for a telephone mention at a date and time convenient to the Court and prior to the listed date for defended hearing.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Young delivered this day will for all publication and reporting purposes be referred to as Cairns & Bowler

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 8764 of 1998

MR CAIRNS

Applicant

And

MS BOWLER

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The matter of Cairns and Bowler and the Independent Children's Lawyer has been listed before me this day.  Mr Turner of counsel appears for the applicant husband, Mr Crabtree is the solicitor representing the Independent Children's Lawyer and the wife appears in person, having travelled from Queensland yesterday as she was directed by the court in the order of 1 June 2007.

2. I have invited the parties to discuss out of court issues of and concerning the welfare and best interests of their children, relocation and time to be spent in the forthcoming September school holidays.  Those discussions have been wholly unsuccessful and Mr Crabtree indicates there is no benefit or likelihood of success in any ongoing discussion. 

3. The matter was last before her Honour Dessau J on 1 June 2007 when a family report was ordered.  That detailed document has been prepared by Mr S and is not before the court and I will now admit same into evidence.  I have read that document, as have the parties.  There are particular recommendations made at the conclusion thereof, but they are not accepted by the parties and the matter remains in dispute. 

4. Mr Crabtree has cautioned the court that a subsequent discussion between the youngest child and Mr Lampe, who is the appointed Independent Children's Lawyer, has raised more recent issues about the wishes of the youngest child and whether they remain consistent with that expressed to the family consultant. 

5. I have raised with all parties, and in particular with Mr Crabtree, the issue of whether or not there should be any updated family report from Mr S, but in view of the desire of the parties to have listed and finalised all matters and the recent preparation date of that report, that invitation was declined.

6. The history of this matter can be ascertained from the various court orders commencing with an ex parte order made by Senior Registrar FitzGibbon on 20 October 2005.  The outcome of that interim order was reinforced by orders of the court made by the Senior Registrar on a defended interim basis and those orders were pronounced on 14 February 2006 and it is pursuant to those orders that the three children, the subject of this application, continue to live in A in country Victoria, with the husband. 

7. There were orders made for the children to spend time with the wife in school holidays and I propose to vary those orders today and also to reinforce the financial obligations for costs of air travel arising out of the orders that I will now pronounce for the forthcoming September school holiday period. 

8. There are no affidavits filed in this case.  The most recent document of the parties is the limited questionnaire which the husband provided to the court in May 2007 and the wife one week thereafter.  I have read those documents, but they are wholly insufficient as a basis of determining defended and opposed applications. 

9. On behalf of the husband what is sought is a continuation of the current orders but on a permanent basis, that is, for the three children to remain living with him and his new partner, and within the environment of the extended paternal and maternal family in A. 

10. The wife now lives in B, in the R area north of Brisbane.  The eldest child, aged 17 years, lives with her, as does her daughter, aged six and a half years of age, who is not a child of this marriage.  The mother's proposals are for the other three children to relocate to her home and to be educated and live in the B area. 

11. From questions I have asked of the parties there is some particular issue about the oldest of the three children subject of this proceeding, his current circumstances, his desire to relocate, his potential employment and, at least from the wife's point of view, his current wellbeing and supervision.  I merely record those issues and make no findings thereupon. 

12. The recommendations of Mr S are that the younger two children forthwith be permitted to relocate to live in Queensland with their mother and that the oldest of the three children continues to live in A with his father. 

13. As I indicated, the parents are unable to discuss these issues in a meaningful manner and notwithstanding the requirements of the Family Law Act and, in particular, the objects and principles as expressed in section 60B thereof, cannot and will not bring about any meaningful discussion or resolution of issues concerning their own children.

14. The listing Registrar has indicated that the Court will have two days on 15 and 16 October to hear and determine this matter. I have made it perfectly clear to all parties that the case must be heard and accommodated within that time frame. I understand the wife will continue to represent herself and will travel from Queensland for that hearing. Currently the wife proposes that her only witness will be herself and that she will prepare a proper affidavit setting out all of the facts, matters and circumstances in support of her case. I have provided to her a copy of the relevant sections of the Family Law Act and, in particular, the primary and additional considerations of section 60CC.

15. The husband, through his counsel, has indicated that he would propose to rely upon the evidence of himself, his partner, a local schoolteacher and additionally his grandmother and both the maternal grandmother and grandfather.  Whether all of those witnesses are necessary, I offer no comment or concluded view.  I have, however, taken the opportunity to emphasise to the husband and his counsel that, as they are applicant, their case will have reasonable time limits imposed upon them and this matter must be conducted on the basis of a full input of evidence from both parties and be concluded within the available two days.  The affidavits of the evidence, therefore, to be filed by the husband should not merely be repetitious, there are primary matters and facts that need be established and there must be time available for the cross‑examination of the family consultant. 

16. In the ideal world I would have organised three days but that currently is not possible, but those are matters for her Honour's discretion and management of her own list as this is an assigned, less adversarial case, listed before and part‑heard by her Honour pursuant to the current order. 

17. The parties will both have to file Form 13 financial statements so their particular financial circumstances, their ability to financially support and educate the children and to accommodate any future time spent known to the court.

18. One of the background factors that I have ascertained is that the husband is legally aided, the wife is not and that may have some impact upon the cost of preparation, the hearing of the case or the case management which I leave wholly to her Honour. 

19. Both parties have emphasised the necessity to have this matter determined so that the future schooling of the children and, in particular of the middle child, can be known before they commence secondary school next year.  Both parties will need to have evidence of the availability of schools before the court.

20. Otherwise I have left the facts and matters of forming part of the affidavit material to the parties and their advisers.  The wife understands her obligation to have a detailed and informative affidavit in proper form, typed and with paragraphs, before the court.  It would also be appropriate for both parties to refine the particular orders that they seek for the children and all time spent with and other consequential orders and specific issue orders and have them detailed in typed form well prior to the listing of this matter for hearing.  It may be that her Honour will conduct a telephone mention of the matter in the weeks leading up to the hearing to ascertain the level of preparation by the parties in compliance with these orders but again, that is a matter that I leave exclusively to her Honour.  

21. Under the current orders the mother is to spend the first week of the Victorian school holidays with the children.  I propose to discharge paragraph 3(b) of those orders of 14 February 2006 and I further propose to make specific travel arrangements and cost of air fares in respect of that school holiday period only.  The travel arrangements are to be organised as soon as practicable.  The children will, subject to any negotiation the oldest child may have with the wife, travel to Queensland on Thursday, 20 September.  The wife will be responsible for those one-way air fares.  The husband will deliver the children to Tullamarine Airport well within the appointed time to ensure their boarding of the aeroplane.  The children will return at the cost of the husband as to air fares on Wednesday, 3 October, and the wife will ensure the children are delivered to Brisbane Airport in ample time for them to board the plane and travel home to Melbourne Airport, there to be met by the husband.

22. As to affidavits I propose to require the husband, as applicant, to file all of his material and then to properly serve both the wife and Independent Children's Lawyer with sealed copies thereof on or prior to Thursday, 27 September.  The wife, by way of a filing date for her affidavit(s), must have them likewise filed and served on or before Friday, 5 October.  That timetable will then allow her Honour sufficient time, if appropriate, to have a telephone mention and update of the listing procedure and affidavit requirements in the week commencing Monday, 8 October, for a hearing the following week.  The Independent Children's Lawyer must confirm the availability of the family consultant to give evidence and be cross-examined on either of those days when the matter is listed for hearing.  

23. Otherwise I make no further comment on the case which has limited material currently on file and from the various matters that both parties have touched upon themselves or through their counsel, it is clear that there are likely to be many and varied allegations made by each of them. 

24. The one other matter I refer to is the circumstances of the oldest child.  I do intend there to be some level of flexibility with the September school holidays subject to his wishes and his employment.  The preferred situation is all three children go and return home together.  However, if the older child genuinely has his new, part‑time, casual employment dependent on his working or if his wishes are otherwise to limit the time that he is in Queensland, then I afford him that reasonable opportunity and quite simply the parents will have to discuss that issue and have some level of respect, both for each other and for the older child.  I propose to make no specific order in respect of the older child, but I will have these extempore reasons transcribed, placed upon the court file and it will be evident that I am imposing some level of compromise and obligation, upon the parents in that regard.

25. For those very brief reasons, and with a genuine hope that this matter will be properly prepared so that it can proceed to hearing, I will pronounce the following orders and list this matter for hearing before her Honour as a primary LAT matter on 15 October 2007.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate:                   
Date: 5 September 2007