Fabell and Fleetwood

[2019] FamCA 67

FAMILY COURT OF AUSTRALIA

FABELL & FLEETWOOD [2019] FamCA 67

FAMILY LAW – PRACTICE AND PROCEDURE – Where the mother seeks orders ex parte – Where the mother has not established that an order for short notice would not suffice – Where the father is entitled to notice of the orders sought against him and an opportunity to be heard – Where the matter is listed to be heard at a later date.

APPLICANT: Ms Fabell

RESPONDENT: Mr Fleetwood

FILE NUMBER: SYC 354 of 2019

DATE DELIVERED: 22 January 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 22 January 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: York Law

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. The proceedings commenced by the mother in her Initiating Application filed 22 January 2019 be listed in relation to interim orders on 30 January 2019 at 10.00 am. For that purpose the Application in a Case filed 22 January 2018 for review is granted.

2. The Application and supporting documents be served on the father as soon as practicable.

3. Notwithstanding the parenting agreement dated 16 November 2018 it is ordered that the child X born on … 2009 live with the mother until further order.

4. The Court Notes that the mother proposes that the child Y born … 2007 be delivered to her on 23 January 2019 at a time agreed between the parties at the rotunda at D Park, E Town or at such other place and time as the parties may agree.

Note:  The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fabell & Fleetwood has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC354 of 2019

Ms Fabell

Applicant

And

Mr Fleetwood

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to two boys, Y born in 2007 and X born in 2009. The parents started living together in 2004, were married in 2006 and they separated recently in October 2018. They struck a parenting plan with the assistance of Ms B which includes a shared care arrangement. The parties agreed that the boys would go with the father overseas for a skiing holiday. The younger child has reacted badly to the parents’ separation, and the parties agreed that he would not travel with the father overseas. The arrangement is that the father will return with Y tomorrow morning.

2. The parties were living in a home in the Region C. They have agreed to purchase a separate home in that same area to be occupied by the mother. Until then there is just one property that they would access, in the Region C.

3. The mother says that until settlement of the purchase of the new property the husband has alternate accommodation and he need not attend at the former matrimonial home. She asked him not to attend at the former matrimonial home on 4 January and he refused.

4. The mother has filed an application seeking ex-parte orders, including orders that the older child spend time with the father on alternate weekends and half the school holidays and that the younger child’s time be a matter left in abeyance until some therapy is organised for him. The mother seeks that, until the settlement of the new property, she have exclusive occupation of the former matrimonial home and that the father be restrained from attending at that property.

5. An applicant for ex parte orders must establish that an order for short notice would not suffice. The mother has not done so. There is no reason why the father could not have been told about the mother’s proposal and given an opportunity to be consulted about it. There is no indication why that could not be done. The mother says that the father is a controlling, manipulative and unreasonable person. Even if that was true, the father is entitled to notice of the orders sought against him and to an opportunity to be heard. It is a fundamental principle of our justice system that people against whom orders are sought are entitled to proper notice. Even though the parties have apparently agreed that in a short time they will no longer live under one roof that does not mean that it is appropriate on no notice to evict one of them from their home.

6. The only pressing matter in the short term is some interference with the pattern of the parenting plan, which, on my reading of it, is unenforceable. The agreement provides that the December/January school holidays be divided week-about from the commencement of the holidays until Christmas Eve and then in two-week blocks. Unless I have missed it, I cannot identify who starts that sequence. Therefore I have no idea what the agreement means. I do know that the parties agreed to interfere with the plan to facilitate the skiing trip from 10 January through to 24 January. That would suggest that the boys were to be with the father for that period. As I have noted, the mother says that there was a further agreement to exclude X from that trip.

7. Just to keep the peace I will order that the younger child be with the mother until further order and I will bring the matter back on a day when the father has had a chance to digest the mother’s application. Hopefully the parties will be able to negotiate an arrangement for the return of Y to the mother at a suitable time. If there is a problem in causing that to happen, the parties can come back on short notice. I should interfere as little as is necessary at this stage.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 22 January 2019.

Associate:

Date: 18 February 2019