FIFE & FIFE

[2011] FamCA 72

FAMILY COURT OF AUSTRALIA

FIFE & FIFE [2011] FamCA 72

FAMILY LAW – PRACTICE AND PROCEDURE – where the father did not attend the hearing – where the father has failed to comply with previous orders to file supporting documents – orders that the matter be adjourned

FAMILY LAW – CHILDREN – interim – where the mother has instituted contravention proceedings – best interests – orders that previous orders for the father to spend time with the children be suspended

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Fife

RESPONDENT: Ms Fife

FILE NUMBER: ADC 3346 of 2007

DATE DELIVERED: 3 February 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 3 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: Mr Bowler

SOLICITOR FOR THE RESPONDENT: Martin Robinson Solicitors

Orders

1. Further consideration of the matter is adjourned to Friday 11 March 2011 at 9.15 am for directions and further consideration of the father’s contravention application and the interim orders application of the mother.

2. During the period of the adjournment paragraphs 2, 4 and 9 of the orders of 22 July 2010 are suspended. 

3. The time within which the father has to file and serve any response and answering affidavit in relation to the interim orders is extended to 25 February 2011.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3346 of 2007

Mr FIFE

Applicant

And

MS FIFE

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I am proposing to adjourn the interim proceedings to a time after 22 February, which would give the father one more opportunity to indicate what his attitude is.  I also note that he was ordered to file any response and affidavit to support interim orders on or before 18 January 2011.  That has not happened.

2. In this matter, I have before me today two types of matters:  the contravention application filed by the father on 29 November 2010 and the interim orders of the Initiating Application filed by the mother on 9 December 2010.  The contravention application relates to the orders made by consent by me on 22 July 2010.  The initiating application and interim application also relate to those orders of 22 July 2010.  These proceedings are between the mother and father of two children, A born in August 1998 and C born in April 2000.

3. The father’s contravention proceedings relate to an allegation that the mother failed without reasonable excuse to comply with the orders that the father spend time with the children in accordance with the consent order of 22 July 2010.  The mother’s initiating application and interim orders seek the discharge and or suspension of the orders in relation to the father spending time with the children.

4. I have before me the affidavit of the mother, which was filed on 9 December 2010, to which is annexed significant material in relation to the incident which occurred on 30 September 2010 at an attempted handover of the children between the mother and the father.  The allegations in that affidavit relate to assaults upon the mother and the child C and property damage to the mother’s vehicle.  I am told by the counsel for the mother appearing this morning that on 27 January 2011, the father pleaded guilty to and was convicted of, charges of assaulting the mother, assaulting C and causing property damage and was placed on a good behaviour bond for two years.

5. At the directions hearing on 21 December 2010, the father was present when the contravention application was listed at 10 am before Burr J on 16 February 2011.  That date, however, was changed but on 7 January 2011, a letter was sent to both the parties, including the father at the address of a service named by him on his contravention application, informing the parties that the hearing had been changed so that the application for contravention is now listed for mention before me this morning.

6. The orders made by Registrar Paxton on 21 December 2010 specifically directed that the interim issues in the mother’s initiating application also be listed before me this morning at 9.15 and adjourned the final orders application to a directions hearing on 22 February 2011 at 11.30.  Included in those orders of the registrar on 21 December 2010 was an order that the father file and serve on or before 18 January 2011 any response to the application by the mother and any affidavit in support of the interim orders.  There have been no such documents filed.

7. The father was called at approximately 9.20 this morning, specifically by name, and there was no appearance.  It is now after 9.30 am.  There still is no appearance.  I therefore proceeded to hear the matter in the absence of the father.  I have taken into account the filed material and the submissions of counsel for the mother.  The annexed material to the documents sets out behaviour by the father which has appropriately caused the mother concern and includes specific restraining orders directed to the father which prevent him having contact or interaction with the mother and the children save and except as ordered by the Family Court order.

8. Taking into account the serious material in the mother’s affidavit, I am satisfied that it is in the best interests of the children to suspend the orders in relation to the father spending time with and communicating with the children. I take into account the provisions of section 60CC of the Family Law Act 1975 wherein one of the primary considerations is the need to protect the children from harm.  I also take into account the other primary consideration, which promotes a meaningful relationship between the children and each of the parents in appropriate circumstances.

9. Considering all of those factors and the other provisions of Part VII of the Family Law Act 1975, I am satisfied that it is in the best interests of the children to suspend paragraphs 2, 4 and 9 of the order of 22 July 2010, and I propose to so order.  I will grant an adjournment to bring the matter back before the Court to give the father one last chance to respond to the material filed by the mother and to appear for directions in relation to the contravention application which he has filed.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 3 February 2011.

Associate: 

Date:  17 February 2011