Dennis and Herman (No.2)

[2011] FMCAfam 666

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DENNIS & HERMAN (No.2) [2011] FMCAfam 666

FAMILY LAW – Children – parenting orders – interim orders – variation of orders.

Family Law Act 1975, ss.60CA, 60CC

Applicant: MR DENNIS

Respondent: MS HERMAN

File Number: SYC 5373 of 2007

Judgment of: Scarlett FM

Hearing date: 1 July 2011

Date of Last Submission: 1 July 2011

Delivered at: Sydney

Delivered on: 1 July 2011

REPRESENTATION

Applicant: Appeared in person

Solicitor for the Respondent: Mr Feather

Solicitors for the Respondent: Humphreys & Feather

ORDERS

UNTIL FURTHER ORDER:

1. The orders made on 29 October 2009 are suspended.

2. The parties are to have equal shared parental responsibility for the children [X] born [in] 1999 and [Y] born [in] 2001.

3. The children, [X] and [Y] are to spend time with the Father from 12:30pm on Sunday 3 July 2011 until further order.

4. The Mother must return the children [X] and [Y] to the care of the Father by 12:30pm on Sunday 3 July 2011.

5. The parties are restrained by injunction from removing the children or either of them, out of the state of New South Wales.

6. The Father is to file and serve an affidavit, setting out the facts upon which he seeks to rely, by Monday 11 July 2011.

7. The Mother is to file and serve an affidavit setting out the facts upon which she seeks to rely by Thursday 21 July 2011.

8. The Application is adjourned to Friday 22 July at 10:00am for further mention.

IT IS NOTED that publication of this judgment under the pseudonym Dennis & Herman (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 5373 of 2007

MR DENNIS

Applicant

And

MS HERMAN

Respondent

REASONS FOR JUDGMENT

1. The application was listed today for hearing to completion of contravention proceedings, which are part heard. Regrettably, the matter was not able to be reached early in the afternoon, due to other business of the Court taking considerably longer than was anticipated.  When the matter was called, the Court was informed from the bar table that there had been a significant change in the circumstances relating to the children which appear to be temporary in nature, but the length of that change is not immediately ascertainable.  None of this information is on affidavit.

2. The Court was told that early in May the Mother had left New South Wales to travel to the Northern Territory to undertake a course of training for future employment, which would require her to be away for some time to come, but the end date of that training was not immediately ascertainable. Whether it was four to eight weeks, or whether it was not until October, was a matter of some debate, without any evidence available to support it. The Court was told that the Mother had not taken the two girls with her, but had left them initially in the care of her parents, but they had, shortly afterwards, gone into the care of their father.

3. The Mother flew down from Darwin for the purpose of attending these proceedings, and the Court was told that she had attended at the children’s school this morning and removed them from school, and they were then staying with the Mother’s parents. The Mother is staying there also, but is obliged to return to the Northern Territory by the end of the weekend.  She seeks to have the children spend time with her this weekend, before she returns to the Northern Territory. 

4. The Father has expressed concern and displeasure at the recent actions of the Mother, and has pointed out that under the current orders, which were made on 29^th October 2009, the children are to spend the whole of the July school holidays with him. 

5. I am mindful of the fact that today is the last day of the school term.  It may be argued that the school holidays commence on Monday morning, as tomorrow and Sunday are both days on a weekend.  That is a minor quibble which need not be pursued further.

6. The Father is concerned that he had made arrangements for the children and himself to attend a function on Sunday to celebrate his current wife’s birthday.  He therefore opposes the Mother’s proposal for the children not to be returned to him until 4:00pm on Sunday. 

7. Mr Feather, who appears for the Mother, has indicated that his instructions are that the Mother is required to return to the Northern Territory on Sunday evening, but did wish to spend some time with the children before she returned.

8. This is a situation where the communication between the parties is poor, and the acrimony between them is high. The recent events have done nothing to improve that situation. However, as I pointed out to the parties earlier this afternoon, whilst they themselves are understandably in the grip of some high emotion, the task of the Court is to remain unaffected by emotion, and give consideration to the matters provided under section 60CA of the Family Law Act 1975, which imposes upon the Court a duty, when making any parenting order, to regard the best interests of the children as the paramount consideration.

9. The situation relating the Mother’s absence from New South Wales remains fluid and unresolved.  The children have been living with their father, and it appears that that situation will need to continue, certainly until the matter can be considered in full. 

10. The substantive proceedings between the parties involve an Independent Children’s Lawyer who, of course, is not present today, as when the matter was listed, it was only listed for the purpose of contravention proceedings and, of course, the Independent Children’s Lawyer usually does not take part in those proceedings.  However, it is clear that the evidence relating to this significant change of situation, no matter whether it is temporary or not, needs to be before the Court in proper form which is, of course, by affidavit.

11. Whether either or both parties wish to file an application in the case, or a response to an application in the case, is a matter entirely for them, but the Independent Children’s Lawyer must be made aware of the situation, because it is her responsibility to put to the Court what she sees as arrangements that are in the best interests of the children.  The major change to the children’s life, albeit temporary, has of course occurred – that their mother has gone to the Northern Territory and is visiting Sydney only briefly.

12. What the future arrangements are to be are yet to be decided. However, there is a need for some stability in the children’s lives, and that would involve their spending a continuing period of time with their father, and that situation should occur until the matter can come back to Court with evidence from both parties setting out the facts.  It would not be appropriate for the children to travel to the Northern Territory and, indeed, I am informed that the Mother’s intention is only to stay there for the purpose of this training, at which stage she would return to the state of New South Wales.

13. The Court, in deciding what is in the best interests of the children, must consider the matters set out in subsections 60CC(2) and 60CC(3) of the Act, which include the benefit to the children of having an meaningful relationship with each parent, and protecting children from physical and psychological harm.  There is no evidence before me of any risk to the children of physical and/or psychological harm.  It is important, however, that the children’s relationships with each parent should be fostered and supported.  This means that whilst the Mother is spending some time in Sydney, it would be appropriate for the children to spend some time with her.

14. There is, however, a function on Sunday which is important for the Father and his new family relationship.  Mr Feather, for the Mother, has submitted that it would be in the children’s best interest to at least spend the next couple of nights with their mother, and I’m inclined to agree.  It does seem as if, for the time being, at least, the substantive orders need to be suspended, although I will still make an order that the parties retain equal shared parental responsibility for the children.  The children’s position staying with their father needs to be preserved, although they should spend some time with their mother whilst she is in Sydney. As I said, it would not be appropriate for them to be removed from New South Wales.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Date:  5 July 2011