Fargo and Lark

[2010] FamCA 1266

FAMILY COURT OF AUSTRALIA

FARGO & LARK [2010] FamCA 1266

FAMILY LAW – CHILDREN – changeover venues – restraining orders

Family Law Act 1975 (Cth)

APPLICANT: Mr Fargo

RESPONDENT: Ms Lark

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Ms Wylie

FILE NUMBER: LNC 301 of 2007

DATE DELIVERED: 23 December 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Benjamin J

HEARING DATE: 23 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Higgins

SOLICITOR FOR THE APPLICANT: Bishops

COUNSEL FOR THE RESPONDENT: Mr Williams

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Fitzgerald

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Aid Commission of Tasmania

Orders

1. Changeover will occur at McDonalds Restaurant Town 1 if the Children’s Contact Service is closed on the relevant day.

   UNTIL FURTHER ORDER

2. Both parties be restrained from abusing, demeaning or belittling the other party at any time in the presence or hearing of the child.

3. 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 DIRECTED

4. A copy of the reasons for these orders be taken out and placed on the court file.

5. These reasons not be published.

6. A copy of the transcript of the proceedings be taken out and placed on the Court file.

   IT IS CERTIFIED

7. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Crease & Landers 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 LAUNCESTON

FILE NUMBER: LNC 301 of 2007

Mr Fargo

Applicant

And

Ms Lark

Respondent

REASONS FOR JUDGMENT

1. This matter was listed before me today in the event that there were problems reaching arrangements for handover, as I understand it, over the Christmas break.  The application is supported by an affidavit of the independent children’s lawyer, Ms Wylie, who says:-

   Orders were made on 23 November 2010.  Paragraph 15 of those orders provided changeover would take place at the [Town 1] Children’s Contact Centre.  On 7 December I received an email in relation to changeover from Mr Williams, whom I note is the mother’s solicitor, informing that the children’s contact service was closed on that date.  On 20 December a letter was received from the father’s solicitor that the McDonald’s restaurant at [Town 1] be the venue for changeover.

2. The parties have been unable to agree on the changeover.  The submissions made on behalf of the father were that the changeovers at the place sought by the mother had not worked, and that I had made a determination in that respect in recent times.  The mother’s submission was that she would stay away and that she was concerned that there would be public remonstrations in the changeover at McDonald’s.  I am of course relying on the evidence that came before me when the interim orders were made on 23 November 2010 and have regard to those orders.  I also have regard to the submissions made today.

3. There are two issues.  Firstly to ensure that at the relevant changeover there is no public remonstration for these children, and secondly, that the changeover in fact occurs.  This is a matter where both parties should, at various levels, hang their head in shame.  We are talking about a changeover, for goodness sake.  We are talking about conflict which will cause enormous damage.  And yet, they cannot even agree to something as simple as a changeover and have to come back to a court in that respect.  Whilst I have enormous concerns in that regard, I do not know whether it is one party or the other or a combination of both.  No doubt that will be determined at the final hearing.  In any event, I will make two orders in the matter of Lark and Fargo.

4. I make it clear to the parties that if there is remonstration, or if there are problems, I will have regard to what I have said today in determining any penalties should a contravention be established, because of the time , this is Christmas.  This is when people at least should try and pretend to behave.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on Thursday, 23 December 2010.

Associate:     

Date:              23 December 2010