Everett and Simons

[2012] FamCA 294

FAMILY COURT OF AUSTRALIA

EVERETT & SIMONS [2012] FamCA 294

FAMILY LAW - CHILDREN – Interim order re handover point

Family Law Act 1975 (Cth)

APPLICANT: Ms Everett

RESPONDENT: Mr Simons

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 3098 of 2007

DATE DELIVERED: 3 February 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 3 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hoult

SOLICITOR FOR THE APPLICANT: Altavilla Vessali

COUNSEL FOR THE RESPONDENT: Mr Sweeney

SOLICITOR FOR THE RESPONDENT: Defteros Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Boymal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Victoria Legal Aid

Orders

1. That paragraph 5 of the orders of the Federal Magistrates Court made on 3 March 2011 is varied to substitute McDonalds Restaurant at Town B as the handover point.  For the purposes of such order, the first occasion is thereafter for the operation of this order shall be 10.00am on 11 February 2012.

2. That all applications for final orders be adjourned for hearing before Justice Cronin as the 6^th case in the list commencing on 1 May 2012 but not to be called before 14 May 2012 at 10 am as a two day matter.

3. That by 4 pm on 24 February 2012 the applicant file and serve upon all other parties:

   (a)an amended application setting out with precision the orders to be sought; and

   (b)the affidavits of evidence in chief of all witnesses relied upon.

4. That the applicant pay all setting down and trial fees by 4 pm on 24 February 2012.

5. That by 4 pm on 9 March 2012 the respondent file and serve upon all other parties:

   (a)an amended response setting out with precision what orders are being sought; and

   (b)the affidavits of evidence in chief of all witnesses relied upon.

6. That by 4 pm on 16 March 2012 the applicant file and serve any affidavit in reply to that of the affidavits of the respondent.

7. That by 4 pm on 1 May 2012 the Independent Children’s Lawyer file and serve upon all other parties, any affidavit material relied upon.

8. That no party file any further material other than as provided by these orders without leave of the Court.

9. That pursuant to s 62G (2) of the Act, the parties and the children attend upon and at the direction of a family consultant nominated and appointed by the Director of Child Dispute Services of the Melbourne Registry with a request that the report writer be Mr U for the purposes of the preparation of an updated family report (noting that the previous report was prepared for the Federal Magistrates Court of Australia) not to be commenced until after 16 March 2012 but to be completed and released by 30 April 2012.

10. That the Family Consultant be at liberty to inspect the court file and all documents produced under any subpoena to which objection to release has not been taken.

11. That all parties have leave to issue subpoenae for the production of documents by arrangement with the registrar docketed with the management of the file.

12. That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

13. Should any party fail to comply with these orders or the ensuing amending directions of the docketed registrar, the party who has complied may immediately thereafter file an application in a case supported by an affidavit seeking for the matter to proceed on an undefended basis.

14. That the practitioners for the parties file and serve electronically to …@familycourt.gov.au by 4 pm on 11 May 2012 the following:

    (a)a concise set of orders to be sought if different from those already filed;

    (b)a list of the applications and affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon; and

    (c)a bullet-point summary of argument in relation to the issues in dispute.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Everett & Simons has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 3098 of 2007

Ms Everett

Applicant

And

Mr Simons

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1.This is the first day of the hearing of this matter before me and I am about to make orders for the matter to be heard on a final basis in the middle of May.

2.Orders were made transferring this case here by the Federal Magistrates Court.  It does not seem to be a complex matter, notwithstanding the fact that the parties appear to have been before the Federal Magistrates Court on about 10 occasions.

3.The evidence is going to be relatively targeted and quite straightforward.  That does not mean that it is not difficult.  It simply means as the parties cannot agree, a decision needs to be made.

4.On 3 March 2011, Riley FM made quite specific orders about the husband’s time with G and C and I note that the order was made by consent of the parties.

5.An order was made that the changeovers take place at G Contact Centre but it seems common ground between the parties that that facility is no longer open to the parties.  The reasons do not matter.  It is common ground that it cannot occur.

6.The positions of the parties, therefore, are as follows.  The independent children's lawyer says that a common place to the parties ought to be agreed or found.  The father’s position is that it ought to be McDonald’s at Town B and Mr Holt, on behalf of the wife, says that she has nothing to say other than the fact that there ought not be such an order made.

7.The fundamental issue in this case is what is good for the children?  What is in their best interests?  The fundamental issue in section 60CC is that the children have a right to enjoy the benefit of a meaningful relationship with both of their parents.

8.If I do not set a handover point, then it is open to argument that there is no starting time and place, let alone a concluding time and place for these orders.  It makes sense, therefore, that it is in the best interests of the children that a place be nominated and as the only person who has come up with a suggestion is the husband and he nominates McDonald’s at Town B, I see no reason why paragraph 5 of the orders of 3 March should not be altered to that place.

I certify that the preceding Eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 3 February 2012.

Associate: 

Date:  20 April 2012