Hanahan and Lewis

[2010] FamCA 348

FAMILY COURT OF AUSTRALIA

HANAHAN & LEWIS [2010] FamCA 348

FAMILY LAW – ORDERS – Discharge

APPLICANT: Ms Hanahan

RESPONDENT: Mr Lewis

INDEPENDENT CHILDREN’S LAWYER: Reid Family Lawyers

FILE NUMBER: SYF 4159 of 2006

DATE DELIVERED: 28 April 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cohen J

HEARING DATE: 28 April 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richardson SC

SOLICITOR FOR THE APPLICANT: Barkus Doolan Kelly

RESPONDENT: No attendance

INDEPENDENT CHILDREN’S LAWYER: No attendance

Orders

1. That Order 3. made by the Hon. Justice Cohen on 12 October 2007 is hereby discharged.

IT IS NOTED that publication of this judgment under the pseudonym Hanahan & Lewis is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC 4159 of 2006

MS HANAHAN

Applicant

And

MR LEWIS

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. In this matter on 12 October 2007, I made orders which, among other things, permitted the mother to take the parties’ child to live in America pending final hearing of the children’s proceedings involving the child.  That order was made subject to a number of conditions.  The conditions are those which were volunteered by the mother in order to satisfy the Court that it would be safe to permit her to take the child to live in America pending further hearings.

2. One of the conditions the mother volunteered is now order 3 which was made on 12 October 2007.  It is that the mother shall ensure the child’s presence in Australia at all times when the matter is listed for final hearing, unless excused from doing so by order of His Honour Justice Cohen.

3. The specificity of the limitation on the hearing of any application to excuse the mother from ensuring the child’s presence in Australia was because at the time I made those orders, the Court, as well as the parties, were of the view that I would be the judge hearing the matter to finality.  The matter was in my docket.  The matter was taken out of my docket because of the delay in readying for the final hearing. The delay was probably caused by the father and the consequences of his having been charged with kidnapping of the child, although I do not know the outcome of that charge.

4. The matter is listed before Faulks J. for hearing tomorrow.  The mother seems to believe that the matter is going to be undefended.  I have had some interaction with Faulks J. As a result, it is my understanding that the father believes that the matter will be defended and proposes to appear for that purpose. 

5. As recently as yesterday, those representing the mother asked me to list this matter for the purpose of making an order that the mother be excused from ensuring the child is present in Australia while the hearing which is due to take place tomorrow is being conducted.

6. Ordinarily, if an order of this nature had been made, such an application would be made to the judge who hears the matter.  Because of the way in which the matter has unfolded, it is inappropriate, in my view, for me to make such an order.  It is appropriate for the judge who is to hear the matter to determine whether such an order as I have made, should be imposed or something with the same effect should be required for the hearing to progress or not.  In those circumstances, I regard myself as obliged to discharge my order.

7. The problem that one has is that although the independent children’s representative consents to that situation, one does not know whether the father would consent. Efforts were made yesterday to discover whether he was prepared to consent by contacting his solicitor on the record.  On my understanding, both Faulks J’s associate and my associate, as well as the mother’s legal advisers, have tried to contact the father’s solicitor and have not had any response to their efforts.  Those efforts have been made by both landline, mobile, and internet.

8. It is my view, because of the urgency of the matter and the nature of my order, that I should discharge my order, despite the fact that the father may not have had notice of this application.  There is virtue in necessity.  In any event, the father will be free tomorrow before Faulks J. to argue that the matter should not proceed if he wishes to oppose it proceeding in the event that the child is not in Australia.  No injustice will be done to him.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen.

Associate:     

Date:              3 May 2010