Coles and Brookes

[2012] FamCA 697

FAMILY COURT OF AUSTRALIA

COLES & BROOKES [2012] FamCA 697

FAMILY LAW – CHILDREN – Application for recovery order – final parenting orders previously made – parties were involved in protracted litigation – previous orders set out procedures to be followed when filing new application – inadequate evidence to support the mother’s application – summary dismissal of application

APPLICANT: Mr Coles

RESPONDENT: Ms Brookes

INDEPENDENT CHILDREN’S LAWYER: Ms B. Smithies, Legal Aid Commission (ACT)

FILE NUMBER: CAC 1641 of 2009

DATE DELIVERED: 20 August 2012

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 11 January 2012 in chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Not applicable

SOLICITOR FOR THE RESPONDENT: Not applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission (ACT)

Orders

IT IS ORDERED THAT:

1. The application filed on 11 January 2012 by Ms Brookes is summarily dismissed. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Coles & Brookes (No.2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1641 of 2009

Mr Coles

Applicant

And

Mr Brookes

Respondent

REASONS FOR JUDGMENT

1.   The mother of N sought a Recovery Order in an application filed on 11 January 2012 that he “…  be returned to me half of school holidays”.

2.   She deposed the fact that N had not been returned “…any of the school holidays last year and I have not been able to spend time with my son as other orders hav [sic] been breached all year as well.”[1]

[1] Applicant’s affidavit, [2].

3.   In paragraph 8 of the affidavit the applicant said as follows: “On the 6^th January I turned up at the meeting place as court orders on the 6^th at 9:00 oclock [sic] and he did not show I had sent a tex [sic] to [the father] requesting him to confirm that he would be there but not reply a few weeks before [sic].”

4.   In paragraph 9 of the affidavit the deponent said as follows: “As his farther [sic] did not show I texed [sic] him and he claimed it was the 9^th half of school holidays I texted back saying I will be there then if that’s what he thinks at 9 oclock [sic].”

5.   In paragraph 10 of the affidavit the deponent said as follows: “On the 9^th January [the father] did not show up at meeting place once again I texted him but he will not reply.”

6.   The affidavit concluded in paragraph 12: “I am requesting urgent orders as I have holidays planed [sic] with work and visiting his Nan and Pop and Aunty and Uncles and cousin which is a great shame for N to miss once again due to his farthers [sic] selfish own actions.  These holidays are starting the 16^th January.”

7.   Orders were made on 17 December 2010, after a contested hearing, and in an effort to conclude the long-lasting litigation between the parties I made an order in terms as follows:

18.Neither parent may hereafter file and serve any further application in relation to [N] without such application being accompanied by an affidavit setting out the evidence upon which the application is to be based and causing such application to be filed (without service on the other party) at first instance in the Court for determination by a Judge of the Family Court of Australia sitting in Chambers about whether the application should be summarily dismissed as failing properly to be supported by the evidence filed in conjunction with the application, or may direct that the application be filed and served on the other party, and list it accordingly.

a.  In particular, [the father] will not file a further application for relocation from the [South Coast District of New South Wales] on or before 1 November 2011 and will then, if he should choose to do so, do so only in accordance with the procedures outlined in these orders.

8.   The Orders provided

11.In addition to the times referred to above, [N] will spend one half of each of his school holidays with each of his parents.  He will spend the first half of school holidays with his mother in years ending an even number or a zero, and the first half of school holidays with his father in years ending with an odd number. 

9.   The affidavit in support of the Application for a “Emergency Recovery Order” referred in part to events which had previously occurred which were not directly relevant to the application in hand.  The parts that did seem to relate to the immediate issue were paragraphs 8, 9, 10 and 12. 

10. It may have been appropriate that [N]’s father be dealt with for contravention of the Court Order but this would require an interpretation that, implicitly at least, the second half of the school holidays should be with the mother.  Whether that half commenced on 6 January or some other date is not entirely clear, nor is it immediately apparent from the material filed in support of the application.  Hence even a contravention of an order would be difficult to establish. 

11. Even more strongly, the need for a Recovery Order with a potential consequence of the Police attending and taking [N] away from his father was not be shown as being appropriate.  The conflict between the parties is palpable.  Order 18 made in the Orders on 3 March 2011 reflects the fact that the parties have engaged in serial litigation over a long period. 

12. As the Application and its supporting affidavit did not establish any of the matters relating to the best interests of [N] and certainly did not establish in any satisfactory way that there is a basis either for a Recovery Order or for any other form of order in relation to the alleged incident, it was appropriate that the Application should be summarily dismissed. 

13. This does not suggest that the parties do not have real issues between them.  It is clear that they do and are likely to continue to have such issues.  However if they are to be litigated they should be litigated in an appropriate way and not on incomplete material inadequately presented. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 20 August 2012.

Associate:     

Date: 20 August 2012