Dangar and Dangar

[2007] FamCA 1487

FAMILY COURT OF AUSTRALIA

DANGAR & DANGAR [2007] FamCA 1487

FAMILY LAW – CHILDREN – Parenting – Interim

Family Law Act 1975 (Cth)

HUSBAND: Mr Dangar

WIFE: Ms Dangar

FILE NUMBER: MLC 12424 of 2007

DATE DELIVERED: 29 November 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 29 November 2007

REPRESENTATION

SOLICITOR FOR THE WIFE: In Person

Orders

1. That until further order the children T born … May, 1996, V born … April, 2003 and J born … June, 2005 live with the wife and she be responsible for their day to day care, welfare and development.

2. That until further order the husband spend time and communicate with the children as agreed with the wife.

3. That until further order each parent is restrained from relocating the residence of the children outside the State of Victoria without the consent in writing of the other party or a court order.

4. That until further order the wife and children have sole occupation of the former matrimonial home situated at R in the State of Victoria.

5. That until further order each of the parties be and are restrained from denigrating the other party in the presence or hearing of the children or allowing any other person to do so. 

6. That a sealed copy of these orders be served on the husband by ordinary pre-paid post addressed to him at S Company, his employer in Western Australia  AND IT IS REQUESTED  that the wife advise the court as soon as practicable of the full address of that company, by email addressed to …. 

7. That if the husband seeks to oppose any final order sought by the wife in the initiating application filed by her on 15 November, 2007 he file and serve a response within 21 days of service on him of a sealed copy of this order and such service be deemed to occur 14 days after the sealed copy of the order is posted to him pursuant to paragraph (6) hereof.. 

8. That if the husband fails to file a response pursuant to the preceding order the wife have liberty to apply to the list registrar for her application to be listed for final hearing on an undefended basis. 

9. That if the husband files a response pursuant to paragraph (7) of this order, the cross-applications for final parenting orders be referred to the pool of cases awaiting allocation of trial notice directions. 

10. That all extant interim applications be otherwise dismissed.

11. That pursuant to s.62B and s.65DA(2), of the Family Law Act1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

12. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

AND THE COURT NOTES

A.It is the evidence of the wife that she intends to find suitable alternative accommodation in the vicinity of the children’s school and child care in R.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 12424 of 2007

MR DANGAR  

Husband

And

MS DANGAR  

Wife

REASONS FOR JUDGMENT

1. This application concerns three children:  T born in May 1996, V born in April 2003, and J born in June 2005. The children's mother is Ms Dangar.  T is a child of a former relationship of the mother, whose name was changed to Dangar.  The father of V and J, and the stepfather of T, is Mr Dangar.

2. On 15 November, the wife filed an application in which she sought, as a matter of urgency, the issue of a recovery order to take possession of the two younger children and a number of other orders, aimed at ensuring some stability in their lives pending further discussions between the parties.

3. As final orders she sought that she and the husband have equal shared parental responsibility for the three children, that they live with her, and that the husband spend time and communicate with them by agreement.

4. The parties married in December 2003.  They were then living in Western Australia.  The husband commenced to work in the mining industry in 2005.  He was away a great deal.  The wife and children were living in a caravan park and she became increasingly unhappy.  On 20 August 2005, the wife and children left Western Australia and came to Victoria, initially staying in the Mornington Peninsula area, then in R, as it was close to the Melbourne Airport, which minimised travel when the husband came to see the children, which he did about every three weeks.

5. In January this year, the husband bought a house at R.  The parties agreed he would make the mortgage payments in lieu of child support;  the wife did not seek a child support assessment.

6. In early October things worsened when the wife discovered that the husband had formed a relationship with a young woman in Western Australia.  The husband subsequently came to Victoria, with the young woman.  There was a period of tension when he moved into the R house and would not allow the wife to return to it.  He had the two younger children in his care;  prior to that they had been in the primary care of their mother all their life.  It was that which led to the filing of this application.

7. I am satisfied the application was served on the husband on 15 November.  On 20 November the parties had a conversation, in the course of which the husband told the wife that she “had won”.  He said he did not propose to contest the orders that she sought.  He left the key to the house for her.  He signed a document, marked Exhibit 1 (it will remain on the court file) saying that he agreed to let the wife and children stay in the R house until they found suitable accommodation.  He agreed not to come to the property without giving 24 hours notice, or at a time when no-one was there.  He said he would not take the children to Western Australia, or any other State, and would not pick them up from child care. 

8. The husband has been called today and has not appeared.  The wife's belief, by inference drawn from changes in his frequent flyer points balance, is that he flew out to Western Australia yesterday morning.  He works for a company, S Company.  She is not able to give me the address of that company now but has it at home. 

9. I am satisfied that the best interests of the children require the making of interim orders today.  They will remain living with their mother;  their safety and security will be assured.  It would be premature to determine, on an interim or final basis, whether the presumption of equal shared parental responsibility applies.  I note that the wife seeks an order in those terms but I am not satisfied such an order would be in the children’s best interests.  The husband has filed no material.  He cannot be forced to join issue with the wife’s claim.  He will be given another chance to file a response.  If he does not do so the wife can apply to have her application listed on an undefended basis. 

I certify that the preceding 9 paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Brown AM.

Associate

29 November 2007