Farmer and Morris

[2007] FamCA 227

FAMILY COURT OF AUSTRALIA

FARMER & MORRIS [2007] FamCA 227

FAMILY LAW - CHILDREN - Orders - Variation

APPLICANT:  MS FARMER

RESPONDENT:  MR MORRIS

FILE NUMBER: HB 56 C of 2007

DATE DELIVERED: 13 March 2007

PLACE DELIVERED: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 13 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms M. Ryan

COUNSEL FOR THE RESPONDENT: Mr Jordan

Orders

1. THAT order of this Court dated 5 February 2007 be varied by changing the time in order 4 from twenty eight days from that date to require that the mother return the principle residence of the child a daughter born in November 2005 (“the child”) to South East Queensland on or before 5.00pm Saturday 7 April 2007.

2. THAT order 3 of this Court dated 5 February 2007 be varied to provide that the time the child spends with the father each Sunday will commence Sunday
   8 April 2007.

3. THAT the application in a case is otherwise dismissed.

4. THAT costs be reserved.

   IT IS NOTED

5. THAT this matter is listed on 21 March 2007 in Brisbane.

   IT IS CERTIFIED

6. THAT pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HB 56 C of 2007

MS FARMER

Applicant

And

MR MORRIS

Respondent

REASONS FOR JUDGMENT

1. This is an application in a case by the mtoher which was filed on 2 March 2007 and relates to an order made by this Court on 5 February 2007 when I ordered the return of the child, a daughter, born in November 2005, to return to Brisbane or to south-east Queensland after an interim hearing.

2. The order provided that the mother return the child to principal residence to Queensland within 28 days.  The mother filed an application on 2 March 2007 within that 28-day period and relied upon an affidavit by herself.  She seeks a stay of the order and I do not know that that is within my powers to grant a stay of an order which is not subject to an appeal.  I have power to vary an interim order.  I possibly have to stay but it would be an unusual step for me to do so.

3. The father has sworn an affidavit on 13 March 2007 and a facsimile copy was provided to me.  He has in essence said in his affidavit that he doubts that the mother will comply with the order and has concerns about her bona fides in terms of this application and his counsel has made significant submissions in that regard.

4. To his credit the father, when he was told that the difficulty with the mother returning to Queensland was the problem of funding the trip, he paid into the mother's solicitor's trust account, as I understand it, the sum of about $1300 to facilitate that return.

5. The only order that the mother seeks is an extension of the order made by me by the space of 28 days.  It seems in the particular circumstances of this case, and bearing in mind that the mother made her application within the 28-day period rather than allowing herself to go and to breach the orders, that some additional time should be allowed, and I propose to do so.

6. Easter is coming up.  It commences on Easter Friday, 6 April 2007.  I intend to extend the operation of the order to require the mother to return the child to south-east Queensland by Saturday, 7 April 2007.

I certify that the preceding 6 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin

Associate: 

Date:  13 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as FARMER & MORRIS