Farrell and Farrell - [2010] FMCAfam 240

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FARRELL & FARRELL

[2010] FMCAfam 240

FAMILY LAW – Children – interim orders – children to spend time with the father pending the handing down of final decision.

Family Law Act 1975, ss.60B, 60CA

Applicant:

MS FARRELL

Respondent:

MR FARRELL

File Number:

PAC5984/2007

Judgment of:

Scarlett FM

Hearing dates:

23-25 February 2010

Date of Last Submission:

25 February 2010

Delivered at:

Dubbo

Delivered on:

25 February 2010

REPRESENTATION

Counsel for the Applicant:

Mr Battley

Solicitors for the Applicant:

Nelson Keane & Hemingway

Respondent:

In Person

Counsel for the Independent Children’s Lawyer:

Mr Berry

Solicitors for the Independent Children’s Lawyer:

Boyd & Longhurst

ORDERS

Until further order the children, [X] born [in] 2003 and [Y] born [in] 2005, are to spend time with the respondent father from 4 pm to 7 pm on Friday 26 February 2010 to include taking the children to their swimming lessons in Dubbo and remaining there with them.
Until further order the said children are to spend time with the father from 10 am to 4 pm on each of the following days:
(a)Saturday, 27 February 2010;
(b)Sunday, 28 February 2010;
(c)Saturday, 6 March 2010; and
(d)Sunday 7 March 2010.
For the purposes of orders (1) and (2) above the mother is to deliver the children to the father outside the Dubbo Police Station and the father is to return the children to the mother outside the Dubbo Police Station at the conclusion of the time the children are to spend with the father according to these orders.
Mr F is restrained from being within 100 metres of the mother and the father on the changeover occasions specified in order (3) above.
The father is to inform the mother a reasonable time beforehand if he does not intend or is unable to see the children on any of the times set out in orders (1) and (2).

IT IS NOTED that publication of this judgment under the pseudonym Farrell & Farrell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DUBBO

PAC5984/2007

MS FARRELL

Applicant

And

MR FARRELL

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

It is unusual to make interim parenting orders at the conclusion of a final hearing relating to children's issues and property issues, but this is a case that has some unusual aspects to it. In essence, the children are currently living with their mother in a country town in New South Wales.
The parents have separated and the father has relocated to Vanuatu, where he has established a business. He seeks orders that would involve the children spending approximately half the year with him in two 3-month blocks and half the year with their mother. This is opposed by the mother, who seeks other orders. In particular, she seeks orders that the children not be taken by the father out of the Commonwealth of Australia, noting that Vanuatu is a country that is not a signatory to the Hague Convention on international child abduction.
I indicated to the parties that the length of this case and the complexity of the evidence made it inappropriate for the court to make an ex tempore decision setting out final children's and property orders. However, the circumstances of this matter are that the proceeding has been heard in Dubbo, New South Wales. The father is visiting Dubbo for the purpose of these proceedings. He also has business commitments in Brisbane prior to his return to Vanuatu to continue his business.
The Independent Children's Lawyer has submitted a minute of order today, which contains, amongst other things, a minute of interim orders relating to the children spending some time with their father in this area whilst he is visiting Australia. It has been strongly submitted by the Independent Children's Lawyer that it would be far from the best interests of the children for them to know that their father was here in Dubbo, not far from where they are living, and for them not to spend some time with him. That is a view with which I concur.
It has never been the case that the mother has sought orders that the father not spend time with the children. The father, however, has told the court that the mother has prevented or restricted him from spending sufficient time with the children.
I have raised with the parties during submissions today that it appeared that it would be necessary for me to make interim parenting orders and certain matters have been put to me. It is the mother's view that the children have not seen their father in person for a considerable period of time and they need a re-introduction to him before overnight contact should take place. It is the father's view that the children would easily be able to adapt to spending time with their father overnight, both on an interim basis and, indeed, on a long-term basis.
The mother maintains her concerns about the children being taken from the Commonwealth of Australia and the father has made submissions setting out his concerns about the mother taking them out of Australia and, even though she is now an Australian citizen, taking them to Russia, where she was born and where she still has family, and I am aware of the fact that Russia is not a signatory to the Hague Convention on International Child Abduction.
There are currently interim orders in place that were, in fact, made on 30 July 2008, restraining both parties from taking the children out of the Commonwealth of Australia and directing that their names be placed on the Airport Watch List, which is also known as the PACE Alert System.
It is not my intention in the interim period until final orders are handed down to make any change to those orders, so those orders will remain in force so that there will continue to be, until further order, a restraint on both parties from removing the children from the Commonwealth of Australia.
The children are still relatively young. The daughter, [X], was born [in] 2003, and is now of school age. The child [Y] was born [in] 2005 and is not yet at school. Whilst the children have not seen their father for some period of time, I have evidence, in the form of an advice to court from Mr W, family consultant, relating to his observation of the children on an earlier occasion. Mr W said relevantly:
Observation of the children, [X] born [in] 2003 and [Y] born [in] 2005, demonstrated very warm and positive relationships with their father. Upon seeing their father at the Registry, both children ran over and jumped into their father's arms and greeted him warmly. The emotional strength of their connection with him was immediately apparent and the observations demonstrated that Mr Farrell is a person of very great emotional significance with them.
In cross-examination before me Mr W did not resile from that position, although he noted that it was unfortunate that the father had not attended in Australia for the purpose of preparation of the family report, because that would have given him the opportunity to observe, at that stage, interaction between the children and their father. I am of the view that the submission of the Independent Children's Lawyer that the children should spend some time with their father whilst he is here in Dubbo is in the best interests of the children.
I am mindful in making these interim orders of the objects of part 7 of the Family Law Act as set out in section 60B. In subsection 60B(1)(a) it is said that:
The objects of this part are to ensure that the best interests of children are met by (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child.
In the principles underlying the object which is set out in subsection 60B(2)(b) it is said:
Children have a right to spend time on a regular basis with and communicate on a regular basis with both their parents and other people significant to their care, welfare and development, such as grandparents and other relatives.
In my view it would be devastating for the children for them to know that their father was here in Dubbo and not be able to see him. That would not be in the best interests of the children and I am mindful of the fact that the Family Law Act provides under section 60CA that the child's best interests are a paramount consideration in making a parenting order.
For that reason I have decided to make interim orders which will provide that the children will spend some time with their father tomorrow and on Saturday and on Sunday and on the following Saturday and on the following Sunday if he is available to spend time with them. I am mindful of the fact that the father has a tentative booking to return to Vanuatu on 12 March and I am mindful of the fact that he estimates that he needs to spend approximately a week in Brisbane in order to purchase spare parts and other equipment needed for the carrying out of his business.
I am also aware that there has been a degree of antagonism between the parties, although there is no current Apprehended Violence Order in force. Nevertheless, whilst I share with the Independent Children's Lawyer, as a rule, a reluctance for changeovers to take place at a police station, in my view the Dubbo Police Station on an interim basis would be an appropriate venue.
I am also mindful of the fact that for whatever reason there exists an antagonism on the part of the father towards his brother, Mr F. Mr F has been present at court for the last three days and it is clear that

Mr Farrell, the respondent in these proceedings, Mr Farrell, and his brother are not on good terms and Mr Farrell has expressed his views as to how inappropriate it would be for Mr F to be present or in the immediate vicinity at any contact changeover. In my view it is important for the children to see that their parents, notwithstanding their difficulties between each other, can cooperate in the carrying out of court orders intended to ensure the best interests of the children and it would be detrimental to the children for any unseemly scene or unfortunate antagonistic language to be used in their presence. It is for that reason that I propose to make some directions restraining Mr F from remaining within the vicinity at contact changeover.
I am also of the view that there would be a need for the father to give the mother some reasonable notice if for any reason he was not in a position to see the children at one or any of the times that I propose to set out.
It is also relevant to these orders that I am informed that children have a commitment to attend swimming lessons tomorrow afternoon at 5 pm in Dubbo. It would be uncontroversial, in my view, that it is important for all children in Australia to learn to swim. It is clearly in their best interests to learn to swim. That may save their lives some day. It may also be an appropriate occasion for the father to have his first reintroduction to the children, not having seen them for a considerable period of time. The swimming lessons would give the father and the children an appropriate topic of conversation and he may well be very pleased to see the progress that the children are making and to give them some encouragement as they take part in those lessons. This seems to me to be an ideal way for the father to spend some non-threatening time with the children to make the build up of the father/child relationship a real and meaningful one.
Whilst I am of a view that a period of three hours tomorrow afternoon, including the swimming, would be sufficient in the short run, I do accede to the submissions of the Independent Children's Lawyer that on subsequent occasions the children would be able to spend a longer period of time in the company of their father. It is not, in my view, feasible in respect of these limited interim orders to make an order as the father wishes for the children to spend overnight time but that is a matter that the court will give considerable consideration to when framing the final orders.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Date: 12 March 2010