Hartnett and Sampson (No. 3)

[2008] FamCA 473

FAMILY COURT OF AUSTRALIA

HARTNETT & SAMPSON (NO. 3) [2008] FamCA 473

FAMILY LAW – CHILDREN – With whom a child spends time

Family Law Act 1975 (Cth)

APPLICANT: Mr Hartnett

RESPONDENT: Ms Sampson

FILE NUMBER: SYF 3827 of 2004

DATE DELIVERED: 18 June 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 18 June 2008

REPRESENTATION

APPLICANT FATHER: In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Haughton

SOLICITOR FOR THE RESPONDENT: Prosilis Lawyers

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of NSW

Orders

1. The interim proceedings are stood over generally with liberty to either party to restore those proceedings to the list on giving 24 hours’ notice.

2. In the event that there is a contravention of the current parenting orders in the next 4 weeks based on an asserted medical reason for the parties’ son not to travel to Sydney in accordance with those orders, or in any event the parties’ daughter does not travel, leave is granted for any such application filed by the father to be restored before the Court on 7 days notice and service may be effected on the solicitor for the mother.

IT IS NOTED

1. The Independent Children's Lawyer will make preliminary inquiries in relation to the single expert dealing with the issue of the son’s travel.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF3827 of 2004

MR HARTNETT

Applicant

And

MS SAMPSON

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to two children.  The matter has had a tortuous and appalling history involving the children being split between Geelong and Sydney.  The matter has had a final trial, been to the Full Court and remitted to the trial judge.  I think the trial judge disqualified herself and I understand there to be an issue as to the scope of the remitted enquiry before another judge.

2. Some orders were made by me and I am told that they remain in force from December 2007. They were left in place following a fresh hearing before Watts J. The orders involve the children living on a shared basis between their father in Sydney and their mother in Geelong.

3. The youngest child, the boy, has a broken leg. That occurred in Sydney and he was treated in Sydney. There was some medical advice to the effect that he should not fly and he travelled back to Geelong by train. I am told that the mother has some preliminary advice to the effect that the boy may not be able to travel at all. The mother has not decided yet whether she is going to be in a position to comply with the Court orders, and she has not filed any documents. The father has brought the matter to Court because he anticipates a breach of the orders.

4. On a number of occasions in these proceedings the wrong party has been the moving party. If the mother knows of a reason why she will be outside the terms of the orders, it falls to her to bring the matter back to Court and secure the Court’s permission to a change.

5. Having had some involvement in the proceedings I am not sanguine about there being any sensible cooperation between the parties.  They enjoy an appalling relationship and it is a miracle that there is still a relationship between the children and both parents. 

6. The Court will make time available if it can be done, for any urgent proceedings.  It is not good enough for the mother to take matters into her own hands.  Parties are to comply with the orders unless to do so would endanger the children. The presenting problem is not an emergency. This is a situation where the parties can obtain advice and if either of them is confident enough with that advice to act outside the terms of the orders then that party needs to have the orders stayed or amended, by agreement or by the Court.

7. On the face of it, there would be no reason at all for interfering with the arrangements for the older child. These proceedings were on foot prior to the birth of the younger child even to the extent of scenes from the hospital in Melbourne at the time of his birth were recited in affidavits in these proceedings at the time they occurred. Therefore, in my respectful view, it cannot be said that there is something that requires the children to travel together in circumstances where orders in these proceedings have predated the birth of the youngest child.

8. As is said on behalf of the children, the orders exist and I should not presume that the mother is going to step outside the orders. I will try not to do that. I stand the proceedings over with liberty to either party to restore the proceedings to the list on giving 24 hours notice.

9. In the event that there is contravention in the next four weeks relating to an asserted representation by the mother that there is a medical reason for the parties’ son not to travel to Sydney in accordance with the current orders, or a reason in those circumstances why at least the daughter should not travel leave is granted for any such application filed by the father to be restored before the Court on 7 days notice, and service may be effected on the solicitor for the mother. 

10. I note that the Independent Child Lawyer will make preliminary enquiries in relation to a single expert dealing with the issue of the son’s travel.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate:

Date:    27 June 2008