Fitzgerald & Fitzgerald

[2007] FamCA 1001

FAMILY COURT OF AUSTRALIA

FITZGERALD & FITZGERALD [2007] FamCA 1001

FAMILY LAW – CHILDREN – SHARED PARENTING – Urgent orders made for return of two children aged 12 and 9 years to Melbourne following their removal to South Australia by the wife and without notice to the husband – Court orders made in 2000, varied in 2004 by private arrangement provided for considerable time being spent by the children in their father’s care.

APPLICANT: Mr Fitzgerald

RESPONDENT: Mrs Fitzgerald

FILE NUMBER: MLC 9139 of 2007

DATE DELIVERED: 30 August 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 30 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Perisic

SOLICITOR FOR THE APPLICANT: Rowe Lawyers

THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the Initiating Application of the husband filed on 15 August 2007 be adjourned for hearing and determination in the Judicial Duty List at 10.00 am on 3 September 2007.

2. That any further affidavit material to be relied upon by the husband be filed and served not later than 10.00 am on 3 September 2007.

3. That the wife do file and serve any Response and Affidavit or Affidavits upon which she may seek to rely not later than 10.00 am on 3 September 2007. 

4. That the wife do deliver the children … born on … August 1995 and … born on … September 1997 to the husband at 9.00 am on 1 September 2007 at the Adelaide Police Station… in the State of South Australia.

5. That the husband do spend time with the said children from 9.00 am on 1 September 2007 until 9.30 am on 3 September 2007 when he shall deliver them to the Counselling Section of the Family Court of Australia (Melbourne Registry). 

6. That the husband’s costs of this day be reserved.

7. That preparation of the orders made this day be expedited.

8. That the ex tempore judgment delivered this day be transcribed, placed on the court file and made available to the parties.

9. That pursuant to rule 19.51 of the Family Law Rules 2004 this matter reasonably required the attendance of a solicitor acting as Counsel.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Guest delivered this day will for all reporting and publication purposes be known 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 comes before me in the Judicial Duty List and comprises an Initiating Application brought by the husband filed on 15 August 2007.  The respondent to the application is the wife.  The originating process is supported by an affidavit sworn by the husband and filed on 15 August 2007. 

2. I am concerned with urgent interim or procedural orders. Ms Perisic, who appears on behalf of the husband, initially sought a Recovery Order pursuant to section 67U of the Family Law Act 1975. However, the wife is now aware of the proceedings having been provided copies of the Initiating Application and the affidavit in support. As a result, the wife contacted the Family Court by facsimile transmission from a post office in south Australia requesting an adjournment due “to financial circumstances” which “prevented her” from attending court this day.  In her facsimile transmission she requested that she be heard by electronic communication and made application for an adjournment so as to enable her to obtain legal representation and respond to the “claims” of the husband.  As a result of that communication, I heard the application and received submissions from the wife. 

3. A short background is as follows.  The husband was born on in October 1966 and is 40 years of age.  The wife was born in February 1971 and is 36 years of age.  They commenced a relationship in 1995 and married in February 1998.  There were two children born of their union namely, a son, who was born in August 1995 (he is 12 years of age) and a daughter who was born in September 1997.  She is nearly 10 years of age.  Following unhappy differences between the parties, they separated in June 1999. 

4. The husband's application is supported by a very helpful affidavit which sets out the relevant history, the contents of which, however, give rise to cause for concern.  The husband deposed that following their final separation, the wife left with the children and failed to disclose her whereabouts.  This unfortunate situation prevailed for approximately three months.  The husband located the wife, she apparently having entertained another relationship.  In any event, whatever the position, orders were made by consent in court on 14 April 2000 which provided for the children to live with the wife and for them to spend time with him.  Those orders are annexed to the affidavit of the husband and provide for the usual arrangements.  Notable was the fact that a further order was made that each party keep the other informed of their current address and telephone number.

5. The husband deposed to further difficulties in approximately 2001, claiming that the wife prevented him from spending time with the children and of other concerning incidents referred to in paragraphs 9 and 10 of his affidavit.  In any event, there was a change in the welfare arrangements whereby an agreement was entered into between the parties in 2004 which enabled the husband to spend time with the children on a weekly basis from the conclusion of school on Friday until the commencement of school on Monday.  He also spent time, he deposed, with the children during school holiday periods and on curriculum days.

6. As a result of this arrangement, the parties jointly provided notification to Centrelink and the Child Support Agency of their agreement.  I can assume that the husband's time with the children was satisfactorily undertaken between the time of that agreement in 2004 until events changed in a most dramatic manner in June 2007.  The husband deposed that on 22 June 2007 the wife attended the children's school and removed them during a lunchtime period.  The husband was aware that the son had earlier indicated that he would be “back at school the following Monday”, but did not return.  He was then informed the wife had taken the children to reside in an undisclosed location somewhere in South Australia.  He deposed that he was aware that the wife had resumed a relationship with the father of her eldest child, namely with one Mr G and which prevails to this day.

7. The husband deposed that he attempted to contact the wife on a mobile phone.  He was unsuccessful.  He did succeed however in speaking to Mr G on 30 June 2007 in which he was informed the wife would not be returning the children to Victoria and that he had better begin "paying child support into a bank account”.  Mr G refused to permit him to speak to his children which, in my view, was a seriously irresponsible action on his part given the husband’s relationship with the children.  He also asked to speak to the wife, but was informed that she did not want to speak to him. 

8. In paragraphs 14 and onwards of his affidavit, the husband sets out current concerns.  They too are matters of concern to me and which re-enforce the orders I propose to make today.

9. As it now stands, the wife is living in C, South Australia, which is about 43 kilometres, she informed me, from Adelaide.  The children have not been attending school since June 2007, which is both surprising and a matter requiring investigation.  I harbour a deep concern arising from the actions of the wife in leaving the State of Victoria and taking events into her own hands without notification to the husband, as he asserts it to be.  I might add that in the course of submissions from the wife this morning, she said that the husband was aware that she proposed to move to the State of South Australia.  That is clearly an issue between the parties which I am unable to decide one way or the other at this time.

10. However, what is plainly alarming is the exercise of “self-help” undertaken by the wife and the removal of the children from a school that they had been attending, I assume, for some time and in which they had, I dare say, established significant peer group relationships.  Prima facie, it appears they were removed from a regime whereby they spent regular time with their father each weekend and with his wife, K, to whom he was married in January 2005.  He and K have two children of their union, namely, a son who was born in July 2001, and a daughter, who was born in December 2002. 

11. This matter requires urgent investigation and in the circumstances, having discussed the issues with both Ms Perisic and the wife as to what would be the most appropriate arrangements for the delivery of the children to the counselling section of the Family Court of Australia (Melbourne registry) on Monday at 9.30 am, I have decided that it is safer and more expedient in the circumstances for the husband to collect them at 9.00 am on Saturday morning, 1 September 2007 at the Adelaide Police Station.  Accordingly, my order will be that the wife deliver the children to that address at that time and that the husband spend time with them from 9.00 am, on 1 September 2007 until 9.30 am on 3 September 2007.  He will deliver the children to the counselling section of the Family Court of Australia. 

12. I propose to further order that the husband do file and serve any further affidavits upon which he may seek to rely which may, for example, include an affidavit from his wife, K, and that such documents be filed and served not later than 10 am on 3 September 2007.  I appreciate that is the day of the proposed adjournment.  However, Ms Perisic has submitted that her office would be able to prepare any further affidavits to be relied upon which will be provided to the wife at the time of handover on Saturday morning next.  On that basis the wife will be fully appraised of all particulars, facts and the circumstances relied upon. 

13. However, let me make this clear.  One of the real issues here is the children being removed from their school and the State of Victoria.  Ultimately there may be evidence as to their scholastic progress and production of their school reports and the like.  They have been removed from a father who has seen them every weekend and on holidays and who has provided for them in a satisfactory nature within the umbrella of his own household with his wife, K, their own two children and his step-son.  As matters presently stand, the children are now no longer at school.  They are somewhere in “the middle of nowhere”, which, as I recall it, was the wife's explanation of their current positioning in C, South Australia.  That town may be a nice place with satisfactory schooling and that may well be the proposals to be advanced by the wife.  I simply do not know.  

14. Given all the circumstances before me, I am of the view that the orders I propose to make are in the best interests of the children.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  31 August 2007