Henty and Sullivan (No 2)

[2011] FamCA 918

FAMILY COURT OF AUSTRALIA

HENTY & SULLIVAN (NO 2) [2011] FamCA 918

FAMILY LAW – applications for a variation to existing interim orders – parties to file and serve affidavits they rely on for the trial and financial statements.

APPLICANT: Mr Henty

RESPONDENT: Ms Sullivan

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Ms S. Wunderlich

FILE NUMBER: MLC 738 of 2010

DATE DELIVERED: 24 November 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 24 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Ramsey

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Agricola Wunderlich

Orders

1. That the mother and the father’s oral applications for a variation to existing interim orders, made this day, are dismissed.

2. That the matter be adjourned to 19, 20 and 21 March 2012 before me starting on 19 March at 10.00am.

3. That on or before 4.00pm on 6 February 2012 each of the parties file and serve affidavits they rely on for the trial and financial statements.

4. That Registrar Field is requested to conduct a telephone mention as soon as possible after 6 February 2012 on a day to be advised to the parties, to ensure the case is ready to proceed.

5. That by 4.00pm on 13 March 2012, each party file and serve:

   (a)A list of all affidavits they rely upon;

   (b)A precise Minute of Final Orders sought; and

   (c)An Outline of Argument.

6. 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

1. That the father left court before the orders were pronounced and the mother was excused from court before the orders were pronounced.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 738 of 2010

Mr Henty

Applicant

And

Ms Sullivan

Respondent

REASONS FOR JUDGMENT

1. What I’ve got today, obviously, is the first day of a LAT hearing relating to little almost three-year old S.  She will be 3 in a month.

2. Her parents separated back at the beginning of 2010, when she was even tinier.  For reasons that I do not understand, but do concern me quite profoundly, the case has been in this Court for far too long.  I cannot apportion any blame today, whether it is to a party or any of them, the system or a combination.  But I am concerned that it has been that long, and for that reason I have decided today to immediately list the case to the earliest possible date before me for the final part of the hearing, on 19 March next 2012.  I am in the fortunate position of having an up to date Family Report, and a psychiatric assessment of the parties, and that is one of the compelling reasons, too, to get this case on.

3. In the interim pursuant to orders made by the Senior Registrar as recently as 23 August, the child is spending 3 nights’ per fortnight with her father and otherwise living with her mother. 

4. Mr Henty is very, very keen to spend substantially more time with the child and has told me today that he will be seeking a 50/50 shared-care arrangement.  Her mother remains ­ ­ ­  

RECORDED   :   NOT TRANSCRIBED

1. So it is now on transcript that he has made it clear that apparently it is today that he is seeking 50/50 care, and that longer term he seeks – I do not think 100 per cent – but he seeks that she live primarily with him.

2. The mother has referred to certain aspects that make her today seek an order that the time with the father be reduced. 

3. The ICL seeks orders for the status quo.

4. It is always very difficult at an interim stage to make a decision.  I have not heard all the evidence.  I have both parents on oath telling me their different points of view.  Those points of view are diametrically opposed. 

5. What is important to me, of course, is the child’s best interests and stability for her.  It is very recent that her time has been increased to 3 nights’ per fortnight with her father.  I’m not going to make a change to that today. 

6. The beauty of hearing this case in March, is that by then she will have had ample time to settle into that routine and I will have the opportunity to hear ample evidence to determine whether she should live primarily with her mother or primarily with her father.  But if I look at things today, not from either parent’s point of view, but from the child’s point of view, it would be precipitous of me to either suddenly have her with her father half of the time at this age and stage, or to suddenly cut down the time that she seems to be enjoying with her father. 

7. I do not propose any alteration to the current regime today.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau.

Associate:

Date:  24 November 2011