Harrison and Halliday (No. 2)

[2013] FamCA 131

FAMILY COURT OF AUSTRALIA

HARRISON & HALLIDAY (NO. 2) [2013] FamCA 131

FAMILY LAW - CHILDREN – interim orders – with whom a child spends time – where the father’s application in a case was adjourned – best interests – orders for the children to spend time with the father during the adjournment of the father’s application in a case.

Family Law Act 1975 (Cth)

APPLICANT: Mr Harrison

RESPONDENT: Ms Halliday

FILE NUMBER: ADC 2196 of 2011

DATE DELIVERED: 26 February 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 26 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr B. Koziol

SOLICITOR FOR THE APPLICANT: BK Legal

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

Orders

1. The mother deliver up the child P HARRISON born on … February 2010 to the father to spend time with the child:

   1.1from 5.00 pm to 7.00 pm on Friday 1 March 2013;

   1.2from 5.00 pm to 7.00 pm on Friday 8 March 2013.

2. Handover of the child to occur at the B Police Station in the State of South Australia with handover to occur inside the police station UPON NOTING the collecting parent to arrive first ten [10] minutes before the nominated collection time and to leave first with the parent delivering the chid to wait five [5] minutes after departure of the child and the collecting parent before departing.

3. If the mother is going to be late that she notify the father via text message as to her expected time of arrival UPON NOTING the father’s time to spend with the child on the particular occasion remain the same so that the child is returned at a time corresponding to the delay caused by the mother.

4. If the mother does not provide the child she obtain a Medical Certificate outlining the illness of the child and why the child cannot attend to spend time with the father UPON NOTING the mother is at liberty to disclose a copy of these orders to the treating medical practitioner if necessary.

5. If the mother fails to deliver up the child to the father pursuant to paragraph 1 hereof then pursuant to sections 67Q and 67U of the Family Law Act 1975 that a Recovery Order do issue authorising the Marshalls or Officers of the Australian Federal Police and all Officers of the police forces of all the States and Territories of the Commonwealth of Australia requiring them to:

   2.1find and recover the child P HARRISON born on … February 2010;

   2.2return and deliver the said child to the father at the C Police Station in the State of South Australia or such other place as the applicant father and the persons effecting such recovery order agree to be appropriate;

   2.3stop and search any vehicle, vessel or aircraft and to enter into any premises or place in which there is at any time reasonable cause to believe that the said child may be found;

   2.4the police are at liberty to request the assistance of the father to be in attendance upon the recovery of the child to assist in the Recovery Order.

6. The father is to file an affidavit notifying the Court if the mother fails to attend handover on any of the two occasions referred to in paragraph 1 hereof and as such a Recovery Order do issue.

7. Further consideration is adjourned to the current listing on 15 March 2013 at 9.15 am before the Honourable Justice Dawe.

8. If the mother does not attend on Friday 15 March 2013 at 9.15 am the Court may issue a warrant to have her brought to the Court to be dealt with in her failure to respond to the Court Orders.

9. Further consideration of the arrangements for the father to have such make up time is adjourned to the 15 March 2013 at 9.15 am before the Honourable Justice Dawe.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harrison & Halliday  (No. 2) 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 2196 of 2011

Mr Harrison

Applicant

And

Ms Halliday

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I have given consideration to the Application in a Case.  I have clearly dealt with the matter in the absence of the mother, being satisfied that she has been served and to the extent that she has been made aware of the proceedings before the Court this morning. 

2. What has to be determined is the order which is in the best interests of the child P, (“the child”), taking into account all of the matters in the complicated and difficult history of this matter.  The child was born on in February 2010, and is therefore aged 3.

3. There have been detailed proceedings in a European Court and, now, in this Court. 

4. The mother has finally returned to Australia with the child, in compliance with orders made by the German Court, but has failed to comply with the orders made by this Court. 

5. The paramount consideration is what is in the best interests of the child.  In view of the material which has been filed by the father, it would appear to be clearly in the best interests of the child that he have the benefit of a meaningful relationship with both of his parents, taking into account the need to protect the child from any risk of abuse, whether it be physical, emotional or psychological abuse.

6. The mother’s failure to attend Court and failure to comply with the orders of the Court raises serious concerns about her ability to encourage an ongoing relationship between the child and the father.  That is a matter of some significance in ascertaining what is in the best interests of the child.  The Court must, however, take into account, as one of the significant factors, the limited time the father has had with the child in recent days, that being a situation which has been brought about by the clear non-compliance of the mother with the orders of the Courts and her failure to comply with the arrangements for the child to have the benefit of ongoing time with the father.

7. I take into account, however, that the child’s emotional welfare has to be the primary consideration in these circumstances.  I am strongly of the opinion that the evidence indicates that the child should resume the relationship with his father and have the benefit of a meaningful relationship with his father, but that requires it to be introduced in circumstances which give the mother one last opportunity to prevent the child having to be subjected to a recovery order.  It will be the mother’s responsibility to ensure that the child does not have emotional or psychological risk given to him by the attendance of police officers, which would be brought about if she fails to comply with the orders I propose to make.

8. A gradual introduction in relation to the young child’s relationship with the father is appropriate.  I have been asked to extend the time by way of make-up time.  I will consider that that would be appropriate, in due course.  But between now and the adjournment of the matter to 15 March 2013, it would seem inappropriate to rush into such make-up time. 

9. I will adjourn further consideration of the arrangements for the father to have such make-up time to that date, 15 March 2013.  I therefore propose to make the orders which I suggested previously would be appropriate. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 26 February 2013.

Associate: 

Date:  4 March 2013