Forster and Forster

[2012] FamCA 979

FAMILY COURT OF AUSTRALIA

FORSTER & FORSTER [2012] FamCA 979

FAMILY LAW - DIVORCE – application by the wife seeking a divorce – consideration of whether appropriate arrangements had been made for the child of the marriage – where the Court was satisfied that proper arrangements in the circumstances had been made – orders granting the divorce.

Family Law Act 1975 (Cth)

APPLICANT: Ms Forster

RESPONDENT: Mr Forster

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: ADC 3359 of 2007

DATE DELIVERED: 14 November 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 14 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mrs West

SOLICITOR FOR THE APPLICANT: Catherine Hicks & Co

COUNSEL FOR THE RESPONDENT: n/a

SOLICITOR FOR THE RESPONDENT: In Person

Orders

UPON NOTING the divorce is granted today.

1. The Application in a Case filed on 9 November 2012 currently listed for 30 January 2013 is now brought forward to 30 November 2012 at 10.00 am before the Honourable Justice Dawe.

1. The husband is to file and serve any answering documents by 4.00 pm on 26 November 2012.

1. The wife’s costs of the divorce application is adjourned to 30 November 2012 on the understanding that the wife’s solicitors will file and serve full particulars of the costs sought before the hearing on 30 November 2012.

1. The Court directs that if either party identifies applications in a case which were transferred to this Court and are still outstanding that party notify in writing the other party and this Court of the particulars of the outstanding application before 30 November 2012.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Forster & Forster has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3359 of 2007

Ms Forster

Applicant

And

Mr Forster

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is the application of the applicant, who I will describe as the wife in these proceedings, seeking a divorce.  The application for divorce was filed on 20 December 2011 in the Federal Magistrates Court of Australia and has subsequently been transferred to this Court.  The Court also received the response to the divorce, which was filed by the husband on 15 May 2012. 

2. At the commencement of these proceedings the husband, who appears unrepresented, indicated that he accepted the Court had appropriate evidence before it to find that the marriage was proved, that the wife was resident in Australia at the appropriate times and that the marriage had broken down irretrievably.  I have made and will clarify that I am making those findings.

3. The only issue to be determined, in dispute between the parties this morning, was therefore whether the Court should make an order that the Court was satisfied that proper arrangements had been made for the only child of the marriage (who is now under 18).  The child concerned is K, (“the child”), who was born in January 1995.  There is another child of the party’s relationship, who is known as M.  He is aged 22 and continues to reside with the wife.

4. The circumstances concerning the arrangements in relation to the children were the subject of orders made by this Court.  The orders made provide for the child to reside with the mother.  Those orders of 16 March 2009 were however made when the husband was being represented by a guardian and the orders which were made by the Federal Magistrate, in that regard, have now been set aside by the Full Court of the Family Court of Australia.  The efficacy of the orders which were subsequently made in relation to both children’s matters and property settlement matters are yet to be determined. 

5. I am told that His Honour Justice Strickland has reserved his decision in relation to the matter but has indicated to the parties that there should be an application brought by the father if he is maintaining that the orders are voidable and should be set aside.  Those matters are not before me today but it is in the background of those matters which the hearing is before me.

6. I have this morning heard the evidence of both the mother and the father concerning the arrangements currently in place for the child.  The child is currently living with the mother, his brother and the mother’s partner. The mother maintains, in her evidence that the child was progressing well at school.  She produced the term three reports for the child, indicating he was indeed academically progressing very well.  She also gave evidence that he was in good health and had no concerns about his development.

7. The mother was cross-examined by the father but was not significantly challenged in her evidence. 

8. The father also gave evidence in which he asserted that the mother had inappropriate accommodation and was not participating in the child’s education sufficiently.  He challenged her attitude towards providing the child with appropriate food, saying that the child had complained to him about not eating a lot and not discussing education matters with the mother.

9. It appears from the Exhibit that the child has managed to overcome any obvious behavioural or development difficulties at the end of term three, when he obtained excellent results. 

10. The father complains about the mother’s swearing and the small accommodation which she currently has for herself, the children and her partner.  The evidence of the father (which was not challenged) was simply that the child makes complaints to the father about some of his lifestyle arrangements with the mother. 

11. Bearing all of that in mind and particularly the age of the child, and his success at school, and the background to the child’s development being the ongoing litigation between both his parents, I am satisfied that in these circumstances, and notwithstanding that there may be issues concerning the mother swearing in the presence of the child and the complaints the child makes to the father about his living arrangements with the mother, that I am satisfied that proper arrangements in all the circumstances have been made for the care, welfare and development of the child. 

12. In those circumstances, I make all the appropriate orders.  The divorce order will take effect one calendar month and one day from today.  I specifically name the date as 15 December 2012.

13. The other application before the Court deals significantly with the protection of the value of the assets (or at least one asset of the parties) and the sensible arrangements that could be made to bring this litigation to a satisfactory end for both parties. Therefore the timing of the application should be brought forward so that for both parties the matter can be resolved promptly.  The only other day that the matter could be listed would be for an hour’s argument on 30 November 2012 at 10.00 am before me.

14. The question of costs of the divorce is also adjourned to that time, on the understanding that the wife’s solicitors will be filing and serving full particulars of the costs sought, before the hearing on 30 November 2012.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 14 November 2012.

Associate: 

Date:  26 November 2012