Dalston and Ninh

[2019] FamCA 743

FAMILY COURT OF AUSTRALIA

DALSTON & NINH [2019] FamCA 743

FAMILY LAW – CHILDREN – Interim arrangements

APPLICANT: Mr Dalston

RESPONDENT: Ms Ninh

FILE NUMBER: SYC 8073 of 2014

DATE DELIVERED: 4 October 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 4 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Haddock

SOLICITOR FOR THE APPLICANT: Dobinson Davey Clifford Simpson

SOLICITOR FOR THE RESPONDENT: Self-representing

Orders

1. The child Y born … 2010 shall live with his Mother until further order.

2. Until further order Y shall spend time with his Father as follows:

   a.From 5pm on 4 October 2019 until 6:30pm on the following Sunday with Y to be delivered to his Father at the City B Hospital reception area by the Mother and collected from the Father by the Mother from his residence in Sydney.

3. Until further order, Y will spend time thereafter with his Father each alternate Saturday at 10am until the following Sunday at 6:30pm with the Mother to deliver and collect Y from the Father’s home.

4. The Mother is to keep the Father advised in writing including by means of SMS of the place at which Y is from time to time staying.

5. I direct the preparation of a report from and the conduct of a Child Inclusive Conference involving Y and his parents and to facilitate such the Father shall attend at the Canberra registry of the Family Court of Australia on Wednesday 9 October 2019 at 9:30am and thereby attend as directed by the Family Consultant and the Mother is to attend with Y at 10am on Wednesday 9 October 2019 and comply with the directions given by the Family Consultant as to her attendance and Y’s attendance.

6. It is requested that the Australian Federal Police place the name of the child, Y (a male) born … 2010 on the AFP Family Law Watch List Alerts in force at all points of departure in the Commonwealth of Australia.

7. It is noted that the Mother may be contacted at her email address which is ...

8. The proceedings are adjourned for Interim Hearing in respect of the international relocation application to 10am on 28 October 2019.

9. The Mother is to file and serve a single consolidated affidavit from herself and any witness she intends to rely upon in respect of that application by 4pm on 16 October 2019.

10. The Father is to file and serve any affidavit he relies upon in response by 4pm on 23 October 2019.

11. If it is reasonably practicable for Y to attend at his former school, being the Suburb C School, then the parents are to use their reasonable endeavours to ensure his enrolment and attendance.

12. Order 1 of the Orders made by Judge Hughes on 30 September 2019 restraining Ms Ninh born … 1975 from leaving the Commonwealth of Australia is discharged. It is requested that the Australian Federal Police remove Ms Ninh born … 1975 from the Family Law Watchlist.

13. It is noted that it is the Mother’s position that if she was to travel overseas that her preference would be that Y would stay with his Father during such periods.

14. In the event that the Mother intends to travel overseas, then she is to provide the Father with no less than 24 hours’ notice in writing of her intention to do so.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dalston & Ninh has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: SYC 8073 of 2014

Mr Dalston

Applicant

And

Ms Ninh

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. I have been asked to determine arrangements for the child of the relationship, Y, to spend time with his Father and his Mother pending the further interim hearing of this matter.  That determination falls in the context that the interim hearing has been adjourned for a period of approximately one month in order to determine whether or not an interim international relocation should take place. 

2. That issue falls to be determined in the further context of Y having recently been removed from Australia by the Mother and returned to Australia shortly before this matter was listed for today’s hearing. 

3. It appears to be uncontroversial that Y, in terms of a general pattern, has spent fortnightly time with his Father.  The degree to which he has actually done so is perhaps a matter for some dispute, but that description sets out the general pattern. 

4. In determining interim arrangements for Y, no order has been sought pending the interim hearing of the matter in relation to parental responsibility, although I note that the Mother ultimately seeks that parental responsibility be allocated solely to her in the final proceedings.

5. While there is generally a presumption in favour of making an order for equally shared parental responsibility, interim proceedings may dictate that it is not appropriate to apply that presumption.  These interim proceedings fall into that category as they have been conducted in an extremely circumscribed manner limited to dealing with what appears to be likely to be two periods of time that Y spends with his Father pending the further interim hearing of the matter. 

6. Accordingly, no order in relation to parental responsibility will be made. 

7. In terms of the time that Y is to spend with his Father, it was the common position of the parties that Y would spend from this afternoon until this coming Sunday afternoon with his Father and would then spend time with his Father each second weekend from 10am on the Saturday until 6:30pm on the Sunday. That latter pattern reflects in general terms what Y has experienced to date. 

8. What remains the outstanding dispute between the parties is as to what the precise handover arrangement ought to be for Y.  That dispute was whether the Mother would deliver Y to City B this afternoon, or whether Y’s adult sister would deliver Y to the Father in City B.  That is, the dispute was limited as to what the handover arrangements should be today. 

9. What may have been the otherwise dominant consideration in determining orders for Y, being that of the maintenance of meaningful relationship, Y experiencing the benefits of it, is not determinative of that particular issue.  Rather, I am called upon to address the matter in a fairly common sense manner, dealing with the particular exigencies of the situation that faced the parties.  They were put in two ways.

10. Firstly the Father advocates for Y’s sister to deliver Y to him, in order to avoid a risk of the Mother exerting a negative influence on Y pending that delivery, and to avoid any conflict that may occur at handover.  The Mother points to different considerations, being the fact that Y has recently spent an extended period of time in international travel, travelling from Europe to Australia.  Under those circumstances, she says, not unreasonably, that Y would benefit from the support that may be rendered to him by her, as his ongoing primary carer. 

11. It is that consideration which outweighs the risk in respect of conflict and the risk that the Mother may say something negative to Y.  Some comfort may also be given from the fact that the delivery point which would be specified for Y will be the reception of the City B Hospital.  While it may not be unknown for conflict to erupt in the reception area of the City B Hospital, that venue it seems is likely to minimise any significant conflict taking place between the parties, particularly in the context where the attitude that each holds towards the other and the maintenance of Y’s good relationship with the other is likely to be a large factor in determining the interim proceedings. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 4 October 2019.

Associate: 

Date: