Elrington and Elrington

[2008] FamCA 627

FAMILY COURT OF AUSTRALIA

ELRINGTON & ELRINGTON [2008] FamCA 627

FAMILY LAW – CHILDREN —Best interests – Mother sent child to Canada—clear offence under Act—Mother concedes to supervised time—Child to live with Father—orders made in absence of Mother—warned several times—Consent orders made in respect of child

FAMILY LAW – PROPERTY – Consent orders made

APPLICANT: MR ELRINGTON

RESPONDENT: MS ELRINGTON

FILE NUMBER: BRC 2318 of 2007

DATE DELIVERED: 29 July 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 28 – 29 July 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Steel, solicitor of Simonidis Shoebridge Lawyers

SOLICITOR FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Kirkman-Scroope

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: Williams Lawyers

Orders

IT IS ORDERED BY DEFAULT WITH THE MOTHER SUBSEQUENTLY CONSENTING:

Children’s Issues

1. That all previous Orders be discharged.

2. That the child born … September 2001, live with the Father.

3. That the Father have sole parental responsibility for the major long-term decisions in relation to the child.

4. That the Mother and Father forthwith register at the E Contact Centre and do all things necessary for and attend an intake interview with the said Contact Centre.

5. Both parents to contact Dr P (phone …), Psychologist for the purpose of arranging for the Mother to have some immediate time with the child under the supervision of Dr P in rooms at Brisbane.

6. That the Mother spend time with the child as agreed between the parties but failing agreement as follows:

   IMMEDIATELY

   i.for one hour at a time at the offices of Dr P located at Brisbane and supervised by Dr P;

   ii.the Mother be at liberty to bring R for such time;

   iii.that the Father pay the fee for the first visit with Dr P;

   iv.thereafter the parties share equally in the cost of such visits with Dr P;

   v.such visits shall occur no less than fortnightly and be arranged between the parties and Dr P;

   vi.unless otherwise agreed Orders 6(i) to 6(v) operate only until such time as the Contact Centre at E becomes available to conduct the visits;

   E CONTACT CENTRE

   vii.the Mother shall spend time with the child on a fortnightly basis for a period of no less than two hours per session;

   viii.the Mother is at liberty to bring R to such visits, subject to the approval of the Contact Centre;

   ix.the parties shall share the cost of such Contact Centre time equally.

7. That the Mother is at liberty to apply to the Court for the “Contact Centre” requirement to be lifted only on the basis that she has regularly attended and spent time with the child at the Contact Centre and such time with the child has progressed well and to the satisfaction of the child’s Counsellor Ms L.

8. That the Mother, her servants and her agents be and hereby are restrained from removing and/or causing or allowing the child, a male born …September, 2001 to be removed from The Commonwealth of Australia without agreement in writing or Order of the Court.

9. That the Australian Federal Police place the name of the said child on The Airport Watch List in force at all points of arrival and departure in The Commonwealth of Australia and maintain the child’s name on The Airport Watch List until further Order of the Court, save that the Father is at liberty to remove the child from the Commonwealth of Australia in accordance with Order 9A hereof.

9A.    The Father is at liberty to travel overseas with the child provided that:

i)he provides the Mother with one month’s written notice of his intention to travel overseas with the child; and

ii)he provides the Mother with a copy of a return air ticket for the child;

iii)he provides the Mother with a mobile telephone number where he may be reached while overseas;

iv)he provide the Mother, no less than fourteen (14) days prior to departure, with a full itinerary of the proposed travel.

9B.That the Mother deliver the child’s passport to the Father, via his solicitor, within seven (7) days.

9C.That the Mother sign any Passport Application for the child within fourteen (14) days of being provided with same by the Father.

9D.   That the Father retain the child’s passport.

9E.In the event the Mother fails to comply with Order 9C above, then a Registrar of the Family Court of Australia shall be authorised to sign any document, for, or on behalf of the Mother, so that full force and effect may be given to Order 9C.

10. That the Mother communicate with the child by telephone whilst he is at the offices of his Counsellor Ms L, subject to Ms L deeming this to be appropriate.

11. Whilst the Mother is spending time with the child she will not discuss Court proceedings with the child.  Nor will she discuss the child’s father or step-mother or the child’s living arrangements with him.

12. Neither parent shall denigrate the other or permit others to denigrate either party in the presence of the child.

13. That three (3) months from the date hereof, the Independent Children’s Lawyer be discharged.

14. The Mother and R be at liberty to communicate by email with the child.

15. The Mother and R be at liberty to send mail, pictures, gifts and the like to the child at his Father’s post office box.

16. The Father will assist the child to make any reply the child wishes to make to his Mother or his brother R.

17. The Mother shall strictly adhere to her medication regime as prescribed by her treating professional and will not abuse such medication.

18. That the parties keep each other informed of their post office box, their email addresses, their mobile telephone numbers and any changes thereto.

Property Issues

19. That the Husband retain as his absolute property:

(a)all moneys held in his bank accounts;

(b)his superannuation interests;

(c)any furniture, chattels and personal effects in his possession;

(d)his motor vehicles;

(e)any other property in his possession.

20. That the Wife retain as her absolute property:

(a)any moneys held in her bank accounts;

(b)her superannuation interests;

(c)any furniture, chattels and person effects in her possession;

(d)the 1999 Holden Commodore Station Wagon;

(e)any other property on her possession.

21. Subject to Order (22) below, each party retain their respective liabilities and indemnify each other against such liabilities.

22. The Husband will indemnify the Wife against any moneys owing to the National Australia Bank relating to the motor vehicle loan for the 1999 Holden Commodore motor vehicle.

23. That the Wife’s application with respect to property and spousal maintenance matters filed 17 January 2008 be dismissed.

24. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

NOTATION:

The Mother did not arrive at Court until two hours after the time set for the continued hearing.  Counsel for the Independent Children’s Lawyer produced draft Consent Orders approved by the parties the previous evening.  After hearing submissions Orders were made by default.  The Mother arrived in Court after the Orders were made and consented to same.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2318 of 2007

MR ELRINGTON

Applicant

And

MS ELRINGTON

Respondent

REASONS FOR JUDGMENT

ORDERS DELIVERED

1. I do not intend to elaborate on reasons for making the orders in relation to the children's matters suffice it to say the mother, on oath, yesterday conceded that she was accepting of supervised time.  The evidence would indicate that the mother could not be relied on to have any other form of time with her son.  Previously there was a time when there was to be supervised time outside of the contact centre.  I accept the father's evidence as to what occurred on those occasions.

2. I have managed this matter and a parallel matter of P and Elrington.  I note the mother has been blatantly non compliant with undertakings, directions and assurances given.  She sent the child R to Canada whilst there were proceedings pending.  A clear offence under the Act.  She prevaricated in the extreme about arrangements to return the child from Canada saying that a ticket could not be available for a period of some three months.  The father's solicitors advised they could book a flight that week.  She has given an incorrect email address in the P matter as recently as last week.  She has given assurances which are patently false.

3. I find that the draft orders put together were largely agreed to by the parties, and I take that into account.  One of the differences here is there is no restraint on the father taking the child out of the jurisdiction.  I have absolutely no concerns at all for the father to take the child overseas.  He is an Australian citizen, he has lived here all his life.  His partner lives in Australia.  He has a secure job in Australia.  There is no suggestion other than that the father would return with the child.  I would find any proposed travel by the mother would be far more problematic.  She has family in Canada.  She has already sent the child, R, to Canada.  She has proven herself unreliable and unstable in the past.

4. So in the whole of the circumstances I am content to make the orders as drafted and find that the orders for the child are in the best interests of the child and the property orders, that they resolve really the one issue in the matter.  Those orders are made.  They are made in the absence of the respondent mother.  She has been warned many times not to be late.  She is now well over two hours late.  I do not see why the Court should pander to such behaviour.  She has given assurances by phone to the Court she would be here in 20 minutes and that has not happened.

5. Before concluding this matter I would like to place on record how impressed I was with the father.  I have not the slightest doubt about the accuracy and the reliability of his testimony.  I am of the view he has been patient and understanding in the extreme.  He deserves high commendation indeed.  He has had to endure criticisms, unfair allegations and things of that nature.  I am sensitive to all the inconvenience and the cost that he has undergone and to have undergone it principally in the interests of his son.  If I had the power to award medals for good citizenship and good parenting I would certainly do so for you, Mr Elrington.  So on that note we will conclude and I will bring the matter of P and Elrington on. 

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  29 July 2008