Eliot and Eliot and Anor

[2013] FamCA 830

FAMILY COURT OF AUSTRALIA

ELIOT & ELIOT AND ANOR [2013] FamCA 830

FAMILY LAW – PROCESS AND PROCEDURE

Family Law Act 1975 (Cth)

APPLICANT: Mr Eliot

RESPONDENT: Ms Eliot

INTERVENOR: Department Of Human Services

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 5337 of 2011

DATE DELIVERED: 11 October 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 11 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mort

SOLICITOR FOR THE APPLICANT: Cantwell Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms McCreadie

SOLICITOR FOR THE RESPONDENT:

Perisic Lawyers

COUNSEL FOR THE INTERVENER

Ms Donati

SOLICITOR FOR THE INTERVENER

Department of Human Serviceds

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER

Ms Carter

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER

Victoria Legal Aid

Orders

1. That BY CONSENT there be final property orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

2. That the solicitor for the applicant engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

3. That BY CONSENT there be interim parenting orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

4. That the solicitor for the respondent engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

5. That all outstanding applications for parenting orders are struck out of the list with a right to reinstate by application in a case supported by affidavit and such application shall be listed before the Honourable Justice Cronin as soon as practical thereafter.

6. That Order 2 of the orders of Federal Magistrate Hartnett made on 22 June 2011 be discharged and the names of the children B born … 2006 and C born … 2009 be removed from the Airport Watch List AND IT IS REQUESTED that the Australian Federal Police give effect to this order.

7. That the reasons this day be transcribed and be made available to the parties and placed upon the court file.

8. That pursuant to s.65DA(2) and s.62B, 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 Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Eliot & Eliot 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 MELBOURNE

FILE NUMBER: MLC 5337 of 2011

Mr Eliot

Applicant

And

Ms Eliot

Respondent

And

Department Of Human Services
Intervener

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This is the final hearing of both property and parenting matters.  The parties very sensibly have come to a resolution of the property matters and I have been asked to make final orders.  The court should only make orders under s 79 if it is satisfied that it is just and equitable to do so.  That is a very subjective judgment but in this case having regard to what the parties have, what they have done and what each party is happy to settle upon I am satisfied that the orders are just and equitable. 

2. The parenting orders are in a different category.  The background of the matter is well set out in the respective outlines of argument and it is quite clear that it would be inappropriate in the circumstances for the court to make final orders today.  What the parties have agreed upon is an interim arrangement which perhaps unusually, has a very significant involvement of the Independent Children’s Lawyer, whose funding is obviously critical to the success of these orders to the extent that the Victoria Legal Aid authorities are reading these reasons.  I would urge them to ensure that the funding is continued into the foreseeable future so that these orders can be successful. 

3. What the parties wanted to do was to simply have the matters adjourned for a period of some 14 months.  I have resisted that for reasons that I have explained.  I am proposing to make the interim orders and otherwise take the case out of the list noting that counsel for the father has indicated that his client is not happy with the arrangements and wants some unsupervised time. 

4. He sensibly concludes that he cannot do that for some time as there are a number of arrangements that have to be implemented and proved to be successful.  For that reason it is clear that he will make an application in December 2014 from his perspective, but I urge the parties to consider whether that is necessary if indeed these orders are working successfully during the 12 month period between now and 2014. 

5. To the extent that they are successful there is no need for the matter to be relisted but rather the parties can come up with a fresh arrangement and, if necessary, in the form of court orders.  For my purposes I consider it appropriate to simply make the orders on an interim basis, and I stress they are interim, and to simply take the case out of the list and give the parties generally a right to reinstate by application supported by affidavit. 

6. That is necessary because in any event for the father to prove that these things have been successful he will need to provide evidence accordingly.  On that basis he will need to seek more comprehensive orders and support them by an affidavit.  The other important thing to note is that this matter will remain under my care and it will come back to me in any event.  In the circumstances what I propose to do is to make orders in those terms and I ask that the solicitor for the mother engross the minute for the parenting matters and the solicitor for the father the property matters.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 11 October 2013.

Associate: 

Date:  28 October 2013