Fitzgerald and Fitzgerald (No. 2)

[2007] FamCA 1035

FAMILY COURT OF AUSTRALIA

FITZGERALD & FITZGERALD (NO. 2) [2007] FamCA 1035

FAMILY LAW – Children – Adjournment – Extension of existing order that children spend time on a continuous basis with the father

Family Law Act 1975 (Cth)

APPLICANT: MR FITZGERALD

RESPONDENT: MRS FITZGERALD

FILE NUMBER: MLC 9139 of 2007

DATE DELIVERED: 3 SEPTEMBER 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: YOUNG J

HEARING DATE: 3 SEPTEMBER 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS PERISIC

SOLICITOR FOR THE APPLICANT: ROWE LAWYERS

COUNSEL FOR THE RESPONDENT: IN PERSON

SOLICITOR FOR THE RESPONDENT:

ORDERS

1. THAT paragraphs 1 – 5 (inclusive) of the Orders of 14 April 2000 be suspended until further order.

2. THAT the further hearing of the husband’s initiating application filed 15 August 2007 be adjourned to 24 September 2007 in the Judicial Duty List at 10.00 a.m.

3. THAT both the husband and wife, by themselves or their legal representatives appear at Court on that day.

4. THAT until the adjourned date the children of the marriage … born … August 1995 and … born … September 1997 spend continuous time with the husband.

5. THAT the wife be permitted to telephone the children at 6.00 p.m. (Victorian time) daily and the husband is to have the children at home and to receive their mother’s call at that time, the duration thereof not to exceed thirty (30) minutes.

6. THAT on or before Tuesday 18 September 2007 the wife make, file and serve such response and further affidavits upon which he intends to rely and must set out in detail the specific orders she seeks, including the circumstances of the return of the children to South Australia and their future education.

7. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

8. THAT the husband’s costs of this day be reserved.

   IT IS CERTIFIED

9. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the husband.

IT IS NOTED

A.THAT if the wife travels from South Australia prior to the hearing she is to spend some reasonable time with the children but only on the basis that they are not to be removed by her from the State of Victoria.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Young delivered this day will for all publication and reporting purposes be referred to as Fitzgerald & Fitzgerald.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9139 of 2007

MR FITZGERALD

Applicant

And

MRS FITZGERALD

Respondent

REASONS FOR JUDGMENT

1. This matter is before me in the Judicial Duty List.  The respondent wife has travelled from South Australia for this hearing.  The two children of their marriage are a son born in August 1995, now 12 years of age, and a daughter, born in September 1997, now almost 10 years of age.  Ms Perisic appears for the father.  The mother appears in person.  The matter was stood down this morning to enable the mother to attend upon the duty solicitor and obtain some preliminary advice.

2. I have had the benefit of reading the extempore reasons for judgment delivered by his Honour Guest J on 30 August 2007.  I have made available a copy of those reasons and the order of his Honour to the parties this day.  I observe that the wife attended that earlier hearing by telephone.  Both children are at court today.  There is an agreement reached between the parties which is interim in nature, and that is that pending an adjourned hearing date in this list, the children will remain in Victoria and spend continuous time with the husband.  They will be enrolled at Primary School in W.

3. The wife proposes to return to South Australia, there to seek legal aid and to file a response and appropriate documentation seeking a reinstatement of the final orders that were pronounced in her favour and by consent on 14 April 2000.  For the purposes of the orders that I will make this day I propose to suspend the children and parenting provisions of those orders.  That is effectively paragraphs 1-5 inclusive.  It is clearly understood by the parties that the orders that are made this day are not residence orders; they are merely an extension of time that the husband will spend with the children pending the adjourned date.  I am, however, aware of the particular circumstances of earlier this year and the way the children were taken to South Australia and the serious concern that they have not been attending school of recent times.  These are however consent orders and I will pronounce orders accordingly.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate:                   
Date: 7 September 2007