HARRISON & HALLIDAY

[2013] FamCA 59

FAMILY COURT OF AUSTRALIA

HARRISON & HALLIDAY [2013] FamCA 59

FAMILY LAW - CHILDREN – INTERIM ORDERS – with whom a child spends time – where the mother took the child to Germany with her some years ago – where the mother did not comply with a recent decision of a German court requiring her to immediately return to Australia – where the mother is planning to return to Australia in the immediate future – best interests – orders for the child to spend time with the father pending trial.

Family Law Act 1975 (Cth)

APPLICANT: Mr Harrison

RESPONDENT: Ms Halliday

FILE NUMBER: ADC 2196 of 2011

DATE DELIVERED: 1 February 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 1 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Koziol

SOLICITOR FOR THE APPLICANT: BK Koziol

COUNSEL FOR THE RESPONDENT: Ms De Corsa

SOLICITOR FOR THE RESPONDENT: Duty Solicitor

Orders

1. Upon the return of the child P HARRISON born on … February 2010 to Australia the Australian Federal Police place the name of the said child P HARRISON on the Airport Watch list in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch list for a period of five [5] years or until further order of this Honourable Court

2. Each party be and hereby are restrained from removing and/or causing or allowing the child P HARRISON born on … February 2010 to be removed from the Commonwealth of Australia.

3. Upon re-entry to Australia the Australian Federal Police are requested to seize the passport of the child P HARRISON born on … February 2010 and are requested to deliver the passport to the Adelaide Registry of the Family Court of Australia to be held by the Registry Manager until further order.

4. Within twenty-four [24] hours of returning to Australia the mother immediately inform the father of her address and the child’s address.

5. The father spend time with the child on Friday 8 February 2013 from 12 Noon to 2.00 pm with handover to take place at Childcare, Family Court of Australia, Adelaide Registry, Level 2, 3 Angas Street, Adelaide and each week thereafter during the period of the adjournment unless otherwise agreed between the parties in writing.

6. Further consideration of the proceedings is adjourned to 15 March 2013 at 9.15 am before the Honourable Justice Dawe.

7. Any documents the parties seek to rely upon to be filed and served by 8 March 2013.

8. Within seven [7] days from today the mother is required to file and serve an Address for Service.

9. The Court will accept the email address of the mother from the Duty Solicitor to enable the mother to be served with the sealed copy of the Orders made today on the basis that the email address will not be released to any other person without the mother’s written permission.

10. Leave is given to the father to amend his Initiating Application PROVIDED THAT the same is filed and served by 4.00 pm on 8 March 2013.

11. The listing for directions hearing before the Registrar for 2 April 2013 is vacated.

IT IS NOTED that publication of this judgment under the pseudonym Harrison & Halliday is approved 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 am being asked to make significant interim orders in relation to the child of the parties P, (“the child”).  I have taken into account the orders which were made in the Federal Magistrates Court before this matter was transferred to the Family Court of Australia.  But I have also taken into account and paid particular heed to the annexures to the affidavits of the father, and in particular the annexures to the affidavit, which was filed on 21 January 2013, setting out the material which was considered by the German court and the orders which were made by the German court on 21 December 2012 when dealing with the Child Abduction Convention proceedings in Germany, which were taken as a result of the mother leaving Australia and taking the child with her without the permission of the father some years ago. 

2. The current proceedings before me, filed by the father on 24 December 2012, seek certain orders by way of application in a case.  Document 10 refers to those matters.  I have before me counsel who appear for the father today. The duty lawyer has done the Court the good service of appearing for the mother following upon telephone instructions being received from the mother in Germany.  I appreciate the difficulties that the duty lawyer faces in a matter such as this, appearing at short notice with limited instructions and the difficulty of not having documents from the mother upon which the Court can rely.

3. I take into account the regulations of this Court which apply the Convention in relation to Child Abduction and the Convention in relation to Child Protection.  I give significant weight, therefore, to the decisions and evidence of the German court, which is annexed to the affidavit of the father dated 21 January 2013.  In particular, the Court notes that, originally, there was an agreement reached at the Court between the mother and father to provide for the child to be returned to Australia in early January 2013 and thereafter for the father to spend time with the child on the basis that it would increase from a period of a couple of hours up to a period that, from the middle of January, was to be contact from Monday to Friday from 4.30 pm to 7.30 pm and Saturdays from 10.00 am to 6.00 pm. 

4. The mother did not comply with the agreement for her immediate return to Australia pursuant to that agreement.  There was a further order made in which that settlement was revoked and an order was made for the mother to immediately return to Australia.   I refer to the orders of 4 January 2013 which, on the face of it, provide:

   The respondent is ordered to return the child, [P Harrison] to Australia within two weeks of this decision gaining legal force.

5. It appears, from the documents themselves, that the time for appeal was two weeks.  The father has, therefore, formed the opinion that, pursuant to that second order, the child should already have been returned to Australia.  Counsel appearing as the duty solicitor for the mother, however, tells the Court that the mother believed that it was only necessary for her to return to Australia by 6 February 2013 and that she is planning to do so. 

6. The mother was not opposing the orders placing the child on the watch list and the retention of the child’s passport but has told the duty solicitor that she is opposing any order which would allow the father to spend time with the child.  The allegations which the mother made about serious violent and controlling behaviour by the father are denied by the father.  There were notes in the findings of the German court that those allegations of violence, on the evidence that they had received, did not place the child at risk when spending time with the father.  In relation to the orders therefore proposed, it would seem to be in the child’s best interest, and taking into account the history of the matter and the significant agreement reached by the parties as recently as December 2012, that the child have an opportunity to spend limited time with his father pending further consideration of the matters before this Court. 

7. The Court has to take into account as the primary consideration the need to protect the child from harm and the benefit of the child of having a meaningful relationship with each of the child’s parents and other persons relevant to the child.  In that regard, I refer to family relationships which have been significantly restricted whilst the child has been in Germany.

8. The order I make is for the father to spend time with the child with handovers at the child minding centre on 8 February from 12 noon until 2.00 pm.  I propose to continue that each week thereafter during the period of the adjournment.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 1 February 2013.

Associate: 

Date:  12 February 2013