HERMAN & DENNIS
[2011] FMCAfam 1459
•20 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HERMAN & DENNIS | [2011] FMCAfam 1459 |
| FAMILY LAW – Children – parenting – application for interim parenting orders – application in a case – application for orders that children live with mother – application for orders that children spend time with mother over Christmas and January school holidays – two children both girls aged 12 years and 10 years currently in the care of the father – best interests of the children. PRACTICE & PROCEDURE – Application for urgent hearing – whether urgency established – where respondent did not attend court – where application already listed for final hearing in July 2012. |
| Family Law Act 1975 (Cth) ss.60CA, 60CC |
| Applicant: | MS HERMAN |
| Respondent: | MR DENNIS |
| File Number: | SYC 5373 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 20 December 2011 |
| Date of Last Submission: | 20 December 2011 |
| Delivered at: | Sydney |
| Delivered on: | 20 December 2011 |
REPRESENTATION
| Applicant: | In person |
| Respondent | No appearance |
| Independent Children’s Lawyer: | Mrs Dhaliwal |
| Solicitors for the Independent Children’s Lawyer: | Shorehills Legal |
ORDERS
UNTIL FURTHER ORDER
The Applicant Mother is to spend time with the children [X] born [in] 1999 and [Y] born [in] 2001 as follows:
(a)From 2:00pm on Friday 23 December 2011 until 2:00pm on Tuesday 3 January 2012; and
(b)From 2.00 pm on Saturday 14 January until 2.00 pm on Sunday 22 January 2012.
For the purposes of Order 1(a) the Mother is to collect the children from the Father at the McDonald's Family Restaurant at [omitted] NSW on Friday 23 December 2011 and return the children to the Father at the McDonald's Family Restaurant at [omitted] on Tuesday 3 January 2012.
For the purposes of Order 1(b) the Mother is to collect the children from the Father at the McDonald's Family Restaurant at [omitted] on Saturday 14 January and return the children to the Father at the McDonald's Family Restaurant at [omitted] on Sunday 22 January 2012.
The Respondent Father is to file and serve a Response to the Application in a Case and an affidavit not exceeding ten (10) pages of text by 3 January 2012.
The Application in a Case is listed for interim hearing at 10.00 am on Wednesday 11 January 2012.
IT IS NOTED that publication of this judgment under the pseudonym Herman & Dennis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5373 of 2007
| MS HERMAN |
Applicant
And
| MR DENNIS |
Respondent
REASONS FOR JUDGMENT
The application before the Court is an application in a case which is listed as an application for urgent hearing today.
The Applicant Mother is present in Court, but the Respondent Father has forwarded an email to the Court indicating that he would not be attending Court because he had been served in insufficient time and he had not been given an opportunity to respond formally. He said that there was nothing urgent about the matter, and accordingly, he would not attend Court. He advised that the Applicant had been offered the opportunity to spend half of the school holiday time with the children, and that offer still stands.
The Respondent did not seek leave to attend by telephone and has not been contacted. The Independent Children’s Lawyer sought and was granted leave to attend by telephone due to the fact that she is currently ill.
The application before the Court seeks orders:
i)that the children [X] and [Y] live with the Mother;
ii)that the Father spend time with the children from 3 January to 21 January;
iii)that the Father spend time with the children every second weekend;
iv)that the Father spend time with the children during the school holidays;
v)that the Father or another responsible adult nominated by him must be physically present with the younger child, [Y], at all times;
vi)that the Father should not cause the child, [X], to be left alone without adult supervision after dark;
vii)that all communications between the parties be conducted by email or text message or by a communication book, except in the case of urgency;
viii)that the matter be listed for urgent hearing.
The Father, as I have said, has expressed the view that there is no urgency. The Independent Children’s Lawyer has submitted that, apart from two matters raised by the Mother relating to incidents said to have occurred on 1st and 5th December this year, she, too, is of the view that urgency has not been established.
The Independent Children’s Lawyer has also expressed concern about an application to vary the residence of the children on an interim basis, and in this regard I note that the Court has listed the application for Final Hearing from 18 to 20 July 2012 and that a Family Report has been ordered.
The Applicant Mother has expressed some concern about the actions of the Father, particularly in respect of the children’s enrolment at school, pointing out that he had taken the two children from school in [U] and enrolled them in a school at [B]. She has indicated that in her view the urgency of the application does not specifically relate to the time that is to be spent with the children over the forthcoming school holidays which have now commenced, but relates to the incidents of 1st and 5th December to which she has adverted in her affidavit. She said that the second of the incidents was such as to prompt one of the children to telephone her and complain about the actions of the Father and that that then led to a complaint about the earlier incident.
Mrs Dhaliwal, the Independent Children’s Lawyer, has expressed the view that it was unfortunate that the Father has chosen not to attend Court today and that it would be important before the matter is resolved on any basis to make further inquiries about these particular incidents. She has expressed the view that she would wish to speak to the children and that she would wish to see what, if any, explanation the Father would give in respect of these matters. In my view there is force to that submission.
The Mother has pointed out that in her affidavit of 9th December which is a lengthy and detailed document, probably rather longer than a Court would usually permit for an interim hearing. The Father has, in a lengthy email which appears at annexure H of the Mother’s affidavit, offered times for the children to spend with the Mother during the school holidays.
The Mother’s concern about these times is that they are not in one block but, in effect, in two blocks which would involve more changeovers and, as she points out, there is a considerable degree of hostility between the parties. And, as she says, the more changeovers the more likelihood of difficulties arising. There is also force in that submission and that is one of the matters that the Court would consider.
The Court would be reluctant to deal with any application varying the place where the children were to reside without giving the Father some opportunity to file a response and an affidavit in reply. It may well be argued that, apart from the incidents complained of, that no particular urgency has been shown, bearing in mind the final hearing to take place in the middle of July.
In all of these matters, however, when the Court is considering making a parenting order, under section 60CA of the Act the Court must regard the best interests of the children as the paramount consideration. The Court looks at subsection 60CC(2) and (3) to assist it to determine what is in children’s best interests. The primary considerations are set out in subsection (2) and are:
(a) The benefit to the child of having a meaningful relationship with both of the child’s parents, and;
(b) The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The Mother, in her submission to the Court, has raised the question of psychological harm to the children as a result of the actions of the Father.
In my view the Court should allow a period of time for the Father to file a response and an affidavit in reply. The Court will allocate a day on Wednesday, 11 January 2012 to hear the application in a case which will be conducted, as are all interim hearings, by submissions by the parties.
I am informed that the Independent Children’s Lawyer is available on that day and the Applicant Mother has indicated that she will be available to attend Court. I have no idea as to the Father’s availability but, again, I note that he has chosen not to attend Court. In my view it is sufficient notice for him to arrange his affairs so that he can attend Court. I will make an order for the Father to file and serve a response and an affidavit. In my view that should be restricted to 10 pages of text which is what the Court normally require for interim hearings.
That then leaves the question as to whether there should be an order covering the periods of time that the children are to spend with their mother during these school holidays. In my view, noting the acrimony between the parents, I believe that there should be. If the Court makes orders then there will be some certainty and that should reduce the risk of miscommunication leading to unfortunate exchanges which would not be in the best interests of the children.
I note that the Father has set out a program which the Mother does not consider to be entirely satisfactory, but in the circumstances it would seem to me that it would allow the children to spend a reasonable amount of time with their mother, and would, in fact, allow the children to spend the Christmas and New Year period with their mother and their maternal grandparents. The Mother has now provided evidence that as at 18th November 2011 she has returned to New South Wales from the Northern Territory and is currently residing on the New South Wales central coast with her parents.
In the interests, therefore, of certainty I propose to make orders to cover that period and, of course, I can hear further submissions on that issue and on all the issues raised in the application in a case when the matter is before the Court on 11th January 2012.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 22 December 2011
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