Gatrick and Gatrick

[2007] FamCA 930

FAMILY COURT OF AUSTRALIA

GATRICK & GATRICK [2007] FamCA 930

Family Law Act 1975 (Cth)

APPLICANT: MR GATRICK

RESPONDENT: MS GATRICK

FILE NUMBER: MLC 8454 of 2007

DATE DELIVERED: 24 August 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 16 AUGUST 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS WHEELER

SOLICITOR FOR THE APPLICANT: HOLT & MACDONALD

COUNSEL FOR THE RESPONDENT: MR HOULIHAN

SOLICITOR FOR THE RESPONDENT: SHANE ELLIS LAWYERS

Orders

1. That all outstanding applications be adjourned to 5 September 2007 at 9.45am in the Senior Registrar’s list of cases.

2. That by midday on Wednesday 22 August 2007, the wife return the child … born … August 1994 to the State of Victoria and have her within the Melbourne environs.

3. That the first period of time to be spent by the husband with the child thereafter shall be as follows:

   (a)    from 3.30pm on Wednesday 22 August 2007 until the commencement of school on the following Thursday morning and on each Wednesday from after school until before school on the Thursday morning thereafter; and

   (b)   for each alternate weekend from the conclusion of school on the Friday until 7.00pm on the Sunday (or 7.00pm on the Monday if the Monday is a public holiday) commencing on Friday 24 August 2007

   and otherwise in accordance with the orders made on 20 December 2006.

4. That the wife file and serve any amended applications/response together with supporting affidavit material upon which she intends to rely by no later than 4.00pm on Wednesday 29 August 2007.

5. That the husband file and serve any material upon which he intends to rely by no later than 4.00pm on Monday 3 September 2007.

6. That pursuant to Section 68L(2) the Family Law Act 1975 the children, a son born … August 1991 and a daughter born … August 1994 be separately represented AND IT IS REQUESTED AS A MATTER OF URGENCY that Victoria Legal Aid arrange such separate representation.

7. That forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

8. That within 48 hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

IT IS CERTIFIED:

9,That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

1. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

2. Liberty to apply to a judge as a matter of urgency in respect of the compliance with these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8454  of 2007

MR GATRICK

Applicant

And

MS GATRICK

Respondent

REASONS FOR JUDGMENT

1. This matter came to me in a Duty List environment.

2. Orders have been made which I have read to the parties.

3. Mr Houlihan of Counsel was given an opportunity to seek instructions after I had read the material and in particular, the material filed by his client.  He had sought to have the proceedings adjourned and whilst I indicated that I would have little objection to that course, it was only going to be in circumstances where the daughter who is aged almost 13 was first returned to the Melbourne environs.

4. The material of the husband sets out that he was spending time with the daughter but found out that she had gone to Queensland.  Without making any specific finding about this issue, I indicated very clearly to Mr Houlihan that it appeared to be a unilateral act of the wife.  I have read the affidavit of the wife in which she endeavours to explain what her actions were about but she does not assert sufficient particulars for me to be concerned about the welfare of the child such as would justify a unilateral action.

5. Having indicated what I thought was the strong policy of this Court in decrying unilateral action, I indicated that Mr Houlihan would have an opportunity to have his client indicate willingly that she would return to Victoria with the child and that if she was not agreeable, the inevitable recovery order consequences would flow.  Mr Houlihan obtained those instructions and indicated that his client would return on the following Wednesday after I indicated that I was not prepared to extend the time for the return of the child beyond that.

6. The wife through her counsel acknowledges that she has to make a formal application for relocation.  The husband has indicated that he now deposes to seek that the child live with him.  Both parties seem content to have the matter determined as it must, accordingly to the less adversarial trial process.  I have warned each party of the problem they face in continuing interim applications which will inevitably delay the commencement of the less adversarial trial process.

7. Ms Wheeler on behalf of the husband indicated that she wanted to make an application for make-up time.  I indicated that in a duty list environment and particularly having regard to the circumstances of this case, I would decline that at this stage but it is a matter than can be contemplated in the future.  The husband will have to also contemplate that if make-up time is disputed, a contravention application may be necessary and that will further delay the question of the commencement of the less adversarial trial process.

8. Finally, there was heated agreement that the parties needed an Independent Children’s Lawyer and I have made an order expediting that.

I certify that the preceding Eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  24 August 2007