HENGKI & NADYA

[2011] FamCA 456

FAMILY COURT OF AUSTRALIA

HENGKI & NADYA [2011] FamCA 456

FAMILY LAW – CHILDREN – With whom children spend time

Family Law Act 1975 (Cth)

APPLICANT: Mr Hengki

RESPONDENT: Ms Nadya

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 1985 of 2010

DATE DELIVERED: 24 May 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 25 May 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Zeno, Merhi & Associates

SOLICITOR FOR THE RESPONDENT: Wisewould Mahony Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms M. Agresta

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

Orders

1. That the mother and father attend a conciliation conference with a registrar at 11.00am on 24 August 2011.

2. That by 4.00pm on 21 June 2011, the father file and serve an amended application seeking precise orders relating to the children and financial matters.

3. That by 4.00pm on 21 June 2011, the mother file and serve an amended application seeking precise orders relating to the children and financial matters.

4. That the parties have liberty to apply on short notice in respect of these orders generally.

5. That the father deliver the children to the mother at the appointed time referred to in the orders below and be otherwise restrained from being present at X Shopping Centre until the collection time by him at 5.45pm referred to in the orders below.

6. That the reasons for judgment this day be transcribed and be made available to the parties.

7. 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 ORDERED BY CONSENT:

1. That paragraphs 3, 4 and 5 of the orders of the Federal Magistrates Court made on 9 April 2010 are suspended until further order.

2. That until further order, the mother spend time and communicate with the children J born … November 2001, M born … April 2003 and Y born … March 2005 as follows:

   (a)    each Monday and Thursday from 3.45pm until 5.45pm such time to take place inside the X Shopping Centre with the changeover to take place outside Premises 1 save that such time be suspended whilst the mother travels to Country 1; and

   (b)    at any other times as agreed between the mother and the father; that the time pursuant to paragraph (a) hereof take place in the presence of a representative of M Women’s Services.

3. That the mother or her nominee advise the father as soon as practicable of the details of:  

   (a)    her intended travel to Country 1 including departure and return dates;

   (b)    a telephone contact number on which the mother can be contacted in Country 1 for the purposes of communicating with the children or any of them by telephone; and

   (c)    the mother’s actual return to Australia and the date upon which the mother is able to resume time with the children pursuant to the orders above.

4. That the father keep the mother advised of a current residential address and telephone contact number.

IT IS NOTED that publication of this judgment under the pseudonym Hengki & 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. I propose to make orders in terms of paragraph 2(c) of the proposed minute.  That is an order of the Court; it is not an order to which Mr Hengki is consenting. 

2. In every interim proceeding the Court must make orders only if it is satisfied that it is in the best interests of the children to do so. It concerns me that these children have not seen their mother for some seven weeks. It concerns me also that there was an agreement which was extremely vague as to what time the children were to spend with their mother. Those two factors added together indicate that someone needs to take control of these children’s lives to ensure that they have the benefits that all children in Australia are entitled to which is set out in section 60B of the Family Law Act 1975 (Cth) (“the Act”).

3. One of those considerations is that the children have a right to spend time with and to know their parents.  That does not seem to be happening in this case. 

4. Paragraph 2(c) of the order is not opposed by the father but, rather, he wants to add to it that he be able to effectively be present within a reasonable distance or hover so that the children can have time with their mother and he can observe.  My concern about that, having regard to the matters I have just mentioned, is that the children could very well be looking over their shoulder to see just where their father is and, apart from being a distraction for the children when they should be spending quality time with their mother, there is a very real risk that they may defer to him so that, effectively, if decisions have to be made, they will look at how their father reacts.  That is not appropriate in circumstances where there are no assertions of risk made by either the independent children's lawyer or, for that matter, by the father.  The highest that the father’s concern can be elevated to is that he has some anxiety about how the children will react.  

5. The mother’s position is that there will not be a problem and she expects that they will be happy to see her.  One way or the other, a representative of M Women’s Services will be present so that the children will have an opportunity to have another adult present if there is any difficulty arising, possibly out of the mother’s diagnosed schizophrenic illness. 

6. I think this is a case where it is in the best interests of the children that the father is not within the vicinity and, although the orders do not say specifically, I propose to order that the father deliver the children to the mother and the representative of M Women’s Services and then depart from the X Shopping Centre.  That means that he must not be within the vicinity of the X Shopping Centre until 5.45 pm.

7. I propose to make an injunction and I will give the parties liberty to apply on short notice. 

8. I am also concerned in this case that there has been tendency for the proceedings to drift.  Although the parties signed an agreement which, to all intents and purposes, brought all proceedings to an end, it is clear that it was done without the assistance of independent legal advice.  There is some suggestion of a lawyer being present with the mother but I do not understand whether that was for the purposes of advice or some other reason.  This is a case where both parties have applications before the Court for financial matters but have not complied with the obligations under the Family Law Rules by being precise about what orders they are seeking.  I propose to rectify that problem by requiring each party within four weeks to file and serve an amended application in the case of the husband and an amended response in the case of the wife setting out with particularity exactly what orders they propose to seek.  It is important in this case that that occur if what the husband says is right about the fact that they only have the equity in the unencumbered home. 

9. The parties cannot afford the luxury of litigating over a property with that amount of equity, but it is an issue that needs to be resolved, both from the wife’s perspective because she obviously has no entitlement other than in the assets that the parties have and in the husband’s case there is a jointly-owned property.  I propose to order a conciliation conference take place some time in August, bearing in mind that the mother will be away for some months. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 24 May 2011.

Associate: 

Date:  16 June 2011