Hengki and Nadya

[2012] FamCA 21

FAMILY COURT OF AUSTRALIA

HENGKI & NADYA [2012] FamCA 21

FAMILY LAW – CHILDREN - Interim contact pending trial - Contact by telephone - Dispute about number of calls per week.

Family Law Act 1975 (Cth)

APPLICANT: Mr Hengki

RESPONDENT: Ms Nadya

INDEPENDENT CHILDREN’S LAWYER: Glezer Lanteri & Associates Pty Ltd

FILE NUMBER: MLC 1985 of 2010

DATE DELIVERED: 13 January 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 13 January 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Gurpinar

SOLICITOR FOR THE APPLICANT: Starnet Legal Pty Ltd

COUNSEL FOR THE RESPONDENT: Mr Jassar

SOLICITOR FOR THE RESPONDENT: Macgregor Barristers and Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Glaister

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Glezer Lanteri & Associates Pty Ltd

Orders

1. That all outstanding applications for final orders are adjourned to the first day of hearing at 10.00am on 29 February 2012 before the Honourable Justice Macmillan.

2. That forthwith, the wife be the applicant and the husband be the respondent in such proceedings.

3. That before 4.00pm on 10 February 2012, the wife file and serve an amended application setting out with precision the orders that she seeks.

4. That before 4.00pm on 24 February 2012, the husband file and serve an amended response setting out with precision the orders that he seeks in these proceedings.

5. That BY CONSENT there be orders in accordance with the minutes of proposed interim orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

6. That the solicitor for the applicant engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

7. That all interim applications be otherwise dismissed.

8. That the reasons this day be transcribed and be made available to the parties and on the file.

9. 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.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 1985 of 2010

Mr Hengki

Applicant

And

Ms Nadya

Respondent

REASONS FOR JUDGMENT

1. The interim application before me today was filed on 14 December 2011.  Effectively it sought the resumption of time between the mother and these children.  It is common ground that there are problems emanating from the mother’s illness and the court file indicates that the problem has not gone away.

2. In this case J is 10.  M will not too long from now, be nine and Y is not too far away from being seven.  These children have seen the complete breakdown of the relationship between their mother and their father, but then had to deal with the difficulties of the inconsistency of the relationship with their mother.

3. I had previously given reasons for judgment in May 2011, setting out the concerns I had at that time and it would appear, reading those reasons again, that my concerns were well-founded.  To their credit the parties have really worked out virtually everything today, with the exception of one issue and that is the number of times each week the children are to speak with their mother.

4. The positions are simple.  The mother wants two days per week and the father wants it to be one day per week.  The Independent Children’s Lawyer supports the father’s position.  The Independent Children’s Lawyer says there are concerns about pushing these children too quickly, particularly in circumstances where there are allegations of alienation and particularly having regard to the age of J, it may be that problems are more difficult than the mother anticipates.

5. The mother’s position is that she has not spoken to the children for some time and this is all part of the resumption of time.  She will only be seeing them on a fortnightly basis and she wants to be integrally involved in their lives, to the extent of being able to ask them what they are doing.  She has, however, to acknowledge the fact that there have been problems in the past and these children have had to grapple with all of those difficulties.

6. The father’s position is similar to that of the Independent Children’s Lawyer, in that the children are being pushed too quickly.  He says that there have been telephone problems in the past and what he would like to see is that the matters are commenced slowly.  It seems to me there is some sense in all of that for a number of reasons.  First, I am proposing that this case will be heard within the next few months.  Subject to the views of the trial judge it will hopefully give the children some finality and all of the problems between the parties can be examined in some detail, including by a family consultant.

7. Another issue for the parties is that there are allegations of alienation and those matters need clearly to be examined in some detail.  It will be a question of whether or not the father has somehow affected the children or whether he is genuinely concerned about their welfare, having regard to the health of the mother.

8. This is a case where I think things should be done carefully and slowly. Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) provides that a court must consider the best interests of the children as the paramount consideration. It is clearly not the only consideration, but it must be ahead of any other consideration, including the desires of the mother to be involved in the children’s lives.

9. I will be the first to concede that fortnightly visits for a mother who is desperately wanting to see the children is a long gap, but she must look at this from the perspective of the children who, certainly in respect of the two younger ones, are very uncertain about what all this means to them.

10. In determining what is in the best interests of the children the court has to look at s 60CC.  It is a mandatory consideration.  One of the concerns I have is that I do not have any evidence upon which I could make any of the determinations in a meaningful way about any of those matters in s 60CC.  On that basis it is common ground between the parties that in reality this is a very subjective judgment that I am making, as to what is best for these three children.

11. In those circumstances it seems to me that I should hasten slowly.  This is a case where things could go badly wrong.  A refusal for the children to participate in a telephone contact may exacerbate the problem and start contravention proceedings.  However, if the parties cooperate and treat the children as they deserve to be treated, by the time the matter comes before the court the family consultant will have an opportunity to talk to the children about exactly how they are feeling about the relationship with both of their parents.

12. In those circumstances it seems to me the logical conclusion today is to accept the proposal of the Independent Children’s Lawyer and the father and make it that the telephone contact occur on Fridays, between 5 pm and 6 pm and the first of those occasions will be today at 5 pm.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 13 January 2012.

Associate: 

Date:  30 January 2012