Fitrakis and Kouretas
[2008] FMCAfam 406
•31 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FITRAKIS & KOURETAS | [2008] FMCAfam 406 |
| FAMILY LAW – Recovery order – at time of hearing, no need for a recovery order – attempt to enforce a “time with order” under cover of an application for a recovery order – application dismissed. |
| Applicant: | MR FITRAKIS |
| Respondent: | MS KOURETAS |
| File Number: | MLC2706 of 2008 |
| Judgment of: | O'Dwyer FM |
| Hearing date: | 31 March 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 31 March 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Berger |
| Solicitors for the Applicant: | Berger Kordos Lawyers |
| Counsel for the Respondent: | Ms Kouretas appeared on her own behalf |
ORDERS
The application filed on 27 March 2008 is dismissed.
The question of the husband’s costs of this application is reserved to be entertained on any contravention proceeding issued by the husband arising out of the facts and circumstances of the application filed on
27 March 2008.
IT IS NOTED that publication of this judgment under the pseudonym Fitrakis & Kouretas is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC2706 of 2008
| MR FITRAKIS |
Applicant
And
| MS KOURETAS |
Respondent
REASONS FOR JUDGMENT
Introduction
This proceeding was transferred to me out of the duty list on
31 March 2008in the early to mid afternoon. I took this matter, along with others, to assist the Federal Magistrate assigned to the duty list that day. Before making the orders I did, I engaged the wife, who was appearing for herself, and the husband's solicitor, both at the Bar table, to ascertain the background and circumstances giving rise to the application. In that engagement I believe I made clear the reasons for the orders that I made. I did not, however, before making the orders give a summary of my reasons for decision. Set out below are my reasons for decision, which are taken from the transcript of the proceeding.
This proceeding was initiated by the husband when he filed an urgent application on 27 March 2008 for a recovery order concerning two children aged six and five. It came before FM Connolly on
28 March 2008. His Honour did not make a recovery order on that day, but adjourned the further hearing of the matter to the duty list on 31 March 2008 and made further orders that a copy of his orders be served on the wife and for the wife to attend on the adjourned date with the children.
The genesis for the husband's application for a recovery order relates to a belief by the husband that the wife had left her usual residence with the children to frustrate him in collecting the children for time to be spent with him pursuant to final orders made on 21 November 2007. Under those orders he was to have the children for the first half of the school holidays.
By the time this matter came before me the period that the husband would have otherwise spent with the children under the final orders had expired.
As required, pursuant to FM Connolly’s orders, the wife attended in person on 31 March 2008. She, however, did not bring the children with her.
From the comments made by the wife from the Bar table, it became evident that the children were still residing in their usual residence with the wife. On that basis, I determined that a recovery order was unwarranted. The husband’s solicitor conceded as much.
However, the husband was insistent that the application to deliver the children to him was extant because he also sought to have time with the children for the remaining period of the holidays, by way of either make up time or variation to the final orders. In my view, this was not a proper means of effecting enforcement of “time with” orders in circumstances where there ultimately proved to be no need for a recovery order and where the appropriate remedy open to the husband was to initiate contravention proceedings, and for those proceedings to then explore the strength and merit of the wife's reasons for not making the children available for time with the husband pursuant to the final orders.
In any event, time precluded a hearing as to the strengths and merits of the parties' positions. There was no capacity for a hearing that day. Any adjourned hearing would have been at a time well after the children’s school holidays, which would have frustrated the husband’s desire for time with the children during those holidays.
In my view, also, it was inappropriate to use the mechanism of a recovery order to effect a variation of existing orders in order to compensate for time lost.
Whilst there may initially have been justification for the application for a recovery order, it was evident that when the matter came before the Court on 31 March 2008 a recovery order was inappropriate and those ancillary applications that the husband attempted to pursue were ones unable to be implemented and best considered in a contravention hearing where the parties would be afforded an opportunity of a hearing.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of O'Dwyer FM
Associate: Gail Car
Date: 28 April 2008
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