Dalton and Nagle

[2018] FamCA 475

FAMILY COURT OF AUSTRALIA

DALTON & NAGLE [2018] FamCA 475

FAMILY LAW – CHILDREN – Interim parenting – With whom the children will live and spend time – Where there are concurrent parenting proceedings in New Zealand – Where a final hearing is to commence in New Zealand two days’ time – Where there is no adequate evidence of the current circumstances of the children before the Court in order to determine the best interests of the children – Application dismissed.

Family Law Act 1975 (Cth) s 69E(1)

APPLICANT: Ms Dalton

RESPONDENT: Mr Nagle

FILE NUMBER: SYC 2434 of 2018

DATE DELIVERED: 24 May 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 23 May 2018

REPRESENTATION

THE APPLICANT: Ms Dalton appeared on her own behalf

THE RESPONDENT: Mr Nagle appeared on his own behalf

Orders

1. The application of the mother Ms Dalton for interim orders as set out in her Initiating Application filed on 18 April 2018 is dismissed.

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 Dalton & Nagle 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 SYDNEY

FILE NUMBER: SYC2434 of 2018

Ms Dalton

Applicant

And

Mr Nagle

Respondent

REASONS FOR JUDGMENT

The proceedings

1. On 18 April 2018 the applicant mother, Ms Dalton, filed an Initiating Application by which she sought the following final orders:

   1.That the children, [X] born … 2012, and [Y] born … 2014, live with the mother in Australia.

   2.That the children spend time with and communicate with the father as agreed between the parties.

   3.That the father is restrained from removing the children from the Commonwealth of Australia without authenticated written consent of the mother.

   4.That the father pay the mother’s outstanding child support arrears plus interest.

2. By the same application the mother sought the following interim orders:

   1.        Leave for this matter to be listed on short notice.

   2.That the children, [X] born … 2012, and [Y] born … 2014, live with the mother in Australia.

   3.That the father be restrained from removing, or attempting to remove, the children from the mother’s care.

   4.That the children communicate with and/or spend time with the father as agreed between the parties.

   5.That the parties shall attend upon, and cause the children to attend upon, a family consultant for the purposes of a Child Inclusive Conference.

3. The proceedings came before me in a Duty List on 23 May 2018.  Notwithstanding the fact that the proceedings appeared in a Duty List, the mother sought final parenting orders.

4. The respondent father, Mr Nagle, opposed the application of the mother but had filed no material.  He informed me that there are concurrent parenting proceedings in New Zealand, which have reached an advanced stage and are listed for final hearing on 25 May 2018.

Background

1. The mother and the father, who are aged 32 and 49 respectively, began to live together in Darwin in December 2012 and separated in December 2013.  The parties are the biological parents of the child Y.  The father is not the biological parent of X but described himself as his “psychological father” in documents filed in the New Zealand proceedings.

2. According to an affidavit apparently sworn by the mother in support of an application pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth), the children spent an average of seven days per fortnight with the father after the parties’ separation. The father also cared for the children for extended periods while the mother was overseas. They spent six weeks in New Zealand with the father and the paternal family in 2016, while the mother was in Asia. In the same year they spent an additional six week period with the father and paternal family in 2016, at the time of the death of the paternal grandfather.

3. In May 2017 the children spent three weeks in New Zealand with the father.  During this period the mother completed a course in the United States.

4. On 16 January 2018 the mother and the children travelled to New Zealand.  According to the mother’s affidavit, she and the father had agreed upon a “trial period” when she and the children would live in New Zealand to maximise their time with him.  The mother deposed that she contemplated a permanent relocation to New Zealand with the children at this time but had made no final decision.

5. Shortly after her arrival in New Zealand, the mother travelled to South America.  She returned to New Zealand in February 2018.  The mother left the children in the care of a friend in Auckland while she was in South America.

6. During the mother’s absence, the father commenced parenting proceedings in New Zealand.  On 19 January 2018 an interim order was made which prevented the removal of the children from New Zealand.

Consideration

1. The mother and the children are all Australian citizens, thus the Family Court of Australia has jurisdiction to entertain an application for parenting orders pursuant to section 69E(1) of the Family Law Act 1975 (Cth). It is a separate issue whether this jurisdiction should be exercised, where there are competent concurrent proceedings in another country.

2. No application for a stay of the Australian proceedings has yet been brought by the father, although he indicated on 23 May 2018 that he may pursue this option.  Certainly, he opposes the mother’s application for interim or final parenting orders in this court.

3. In my view, the application of the mother for final or interim parenting orders can be dealt with shortly.  On 23 May 2018, there was simply no adequate evidence before me as to the current circumstances of the children.  Accordingly, it was impossible for me to determine what parenting orders would be in the best interests of the children.

4. On the other hand, the New Zealand court is fully seized of evidence in relation to the children’s current circumstances and apparently is on the brink of a final decision.  The mother has engaged lawyers in New Zealand and participated fully in those proceedings.

5. In these circumstances, it seems to me that there is little or no doubt that this court should not intervene in the manner sought by the mother.  I will dismiss the interim application of the mother filed on 18 April 2018.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 24 May 2018.

Associate: 

Date:  24 May 2018