Estella and Morena (No. 2)

[2013] FamCA 414

FAMILY COURT OF AUSTRALIA

ESTELLA & MORENA (NO. 2) [2013] FamCA 414

FAMILY LAW – CHILDREN – Recent interim parenting Orders – No sufficient change in circumstances – Application dismissed

Family Law Act 1975 (Cth)

Rice & Asplund (1979) FLC 90-725

APPLICANT: Ms Morena

RESPONDENT: Mr Estella

INDEPENDENT CHILDREN’S LAWYER: Ms Awyzio

FILE NUMBER: BRC 10237 of 2007

DATE DELIVERED: 03 June 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 03 June 2013

REPRESENTATION

FOR THE APPLICANT: Legal Aid Queensland

SOLICITOR FOR THE RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER DA Family Lawyers

Orders

1. The Father’s Application in a Case filed 11 March 2013 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Estella & Morena (No. 2) 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 BRISBANE

FILE NUMBER: BRC 10237 of 2007

Ms Morena

Applicant

And

Mr Estella

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By Application in a Case filed on 11 March 2013, the Respondent Father in the substantive proceedings sought a number of orders. 

2. As explained to him at the outset of the hearing, some of the orders sought by the Father were not orders that were within the jurisdiction of the Court to make.  For example, the Father sought an order that he receive Family Tax Benefit for the children the subject of these proceedings, namely N born in March 2000, E born in April 2001, and M born in January 2006.  As I explained to the Father, the Court does not have jurisdiction to make an order as to which party receives social security benefits or the amount of such benefits.

3. I also explained to the Father that the Court does not have jurisdiction to make some of the other orders he sought – for example, an order that the High Court of African Country A, and other agencies in Africa, provide documentation concerning N.  I have attempted to explain to the Father the usual course a litigant follows when it is necessary to seek to obtain documents from a foreign country or an agency of a foreign country. 

4. That left the Application of the Father concerning him spending more time with the children the subject of these proceedings. 

5. An interim hearing of the proceedings was held by Justice Tree on 25 February 2013.  At the time of the interim hearing, the question of the children’s parenting arrangements was in issue, and in particular, in issue was the schooling of the children given the Mother’s then-recent relocation. 

6. I am not satisfied on the material provided by the Father that there is any material change in circumstances within the meaning of the line of authority such as Rice & Asplund (1979) FLC 90-725 and others for this Court to revisit the interim Orders that were made after a hearing on 25 February 2013.

7. That is particularly so in circumstances where, by an Order made recently by the Registrar – namely on 24 May 2013 – the substantive proceedings have been listed to a callover to be held on 14 June 2013 for the purpose of setting the matter down for a trial. 

8. The only matter of substance that the Father agitated in terms of seeking an amendment to the interim Orders was that that would enhance his prospects, in effect, of obtaining some social security benefits. 

9. The relevant change that the Father sought was a change to the children spending time with him, rather than commencing from 5.30 pm on a Friday to commencing Thursdays at 8.00 am on the alternate weekends provided for in the Orders of 25 February 2013.

10. As I have already observed, it seems that the amendment sought by the Father is driven by his attempt to enhance his financial circumstances so far as the provision of social security is concerned.  However, in terms of best interest considerations, to the extent it is necessary to refer to those, it is clear from the interim determination made by Tree J on 25 February 2013 that N’s schooling, given his delayed learning development, was a particular issue.  It seems to me clear that it would not be in N’s interests for his school week to be interrupted in the manner proposed by the Father, by moving to the Father’s care on a Thursday morning, prior to the last two days of school in each alternate week.

11. I fundamentally though, am not satisfied that there ought be yet a further interim determination in the circumstances in which I have described them briefly.  For all of these reasons, the Application filed by the Father on 11 March 2013 is dismissed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 3 June 2013.

Associate: 

Date:  4 June 2013