Hertwig and Hertwig (No. 3)

[2018] FamCA 1061

FAMILY COURT OF AUSTRALIA

HERTWIG & HERTWIG (NO. 3) [2018] FamCA 1061

FAMILY LAW – CHILDREN – With whom a child spends time – Where the parties seek clarification of orders previously made.

Family Law Act 1975 (Cth)

APPLICANT: Ms Hertwig

RESPONDENT: Mr Hertwig

INDEPENDENT CHILDREN’S LAWYER: Deborah Awyzio

FILE NUMBER: BRC 2437 of 2016

DATE DELIVERED: 13 December 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 13 December 2018

REPRESENTATION

THE APPLICANT: Self-represented
(by telephone)

THE RESPONDENT:

Self-represented

(by telephone)

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Palmer (by telephone)
DA Family Lawyers

Orders

1. That the Order made 9 November 2018 be amended by inserting after paragraph 9(1)(ii) the following:

   For clarification, the provisions of this paragraph are to be read as providing that the children actually spend two blocks of 21 days with the father in each instance before they return to their mother’s care for the next week, which would see the actual recommencement of the week about regime.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hertwig & Hertwig (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2437 of 2016

Ms Hertwig

Applicant

And

Mr Hertwig

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. On 9 November 2018 I made orders in this parenting dispute between the applicant mother and the respondent father, a dispute in which the Court is also assisted by an Independent Children’s Lawyer. 

2. Paragraph 4 of those Orders, in brief, gave the mother sole parental responsibility until further order for holding the children’s Australian passports with her in Country B and wherever she might be; for obtaining and renewing as necessary valid visas from the Government of Country B for those children permitting them to reside in Country B; and giving her the right to present the children’s Australian passports to Country B authorities as required. 

3. Another part of the Orders, paragraph 9, provided for some make up time for the children with their father in circumstances where the mother had withheld them from the previously ordered week about time with their father, that is, equal shared week about time, for some four months. In that paragraph I made provision for the children to spend one extra week on two separate occasions with their father such that he got two make up weeks with them from that point onwards. 

4. Paragraph 9 said this: 

   That notwithstanding paragraph 8 hereof …

   which is a reference to an order that ordered the mother to immediately reinstate the pre-existing parenting regime:

   … the children shall spend some additional make-up time with the father having regard to the fact that the mother has withheld them from the father for approximately four months, such make-up time to be provided as follows:

   (i)For one extra week on the end of the first week the children spend with the father pursuant to paragraph (8) hereof, so that they, in fact, spend a block of two weeks with him in the first instance, before the week about regime then starts again;

   (ii)For one extra week on the end of the first week the children spend with the father in the coming December-January [Country B] school holidays, so that they, in fact, spend a block of two weeks with him in those holidays before the week about regime then starts again.

5. Understandably, now having read those orders, the parties, that is the mother and the father, at least in the first instance, both interpreted the provisions of paragraph 9 in slightly different ways.

6. The mother interpreted them as meaning that the children were to spend two weeks with the father in a block and then immediately to return at the end of those weeks to the mother for a week before going back to the father for a week etc. The father interpreted it as meaning that they were to spend a block of two weeks with him and when that block of two weeks finished they were to spend another week with him before going back to the mother for a week and so on, on a weekly basis between the parents. On that interpretation, effectively the mother was giving up her week of the week about regime after the first week that the children spent of that week about regime with the father, without any other interruption to the normal course of that week about regime.

7. The parents apparently being dispute about it, sought the assistance, or circuit breaking opinion, of the Independent Children’s Lawyer. Ms Palmer who appears for the Independent Children’s Lawyer today, Ms Awyzio not being available, read to the Court an email that the Independent Children’s Lawyer had sent to the parties. Without remembering exactly the wording of that email, the email to the parties indicated that the Independent Children's Lawyer interpretation of the Order accorded with that of the father. I am told that notwithstanding the fact that the mother was a bit disappointed with that outcome, that the interpretation advanced by the father and supported by the Independent Children’s Lawyer was what the parties put into execution in respect of the first period of time that the children went to spend with the father.  They stayed with him for a block of 21 days being two of his normal week about weeks with the week of the mother in between effectively given up and provided to the father as make up for, but not total replacement for, the weeks that he missed in the four months that the mother withheld the children.

8. That would normally be the end of it.  However, there is one more of those periods yet to commence. The school holidays are about to start, so the parties have one more period of time when the father is to get an extra week. It would normally suffice to say, well you have agreed on the execution of the way in which the Orders should be put into play, albeit with the intervention of the Independent Children’s Lawyer, and therefore that should just follow for this next occasion. It does not stop there. The mother has contacted my Chambers and sought some clarification from me as to the interpretation, asserting that the Country B authorities have somehow told her that they require clarification from me as some sort of explanation for why she has not travelled out of the country to this point in time to seek to have the visas for the children put back in place. 

9. Having received the email from the mother yesterday, appropriately copied to the other parties, I listed the matter for hearing before me this morning and have already explained to the mother the inappropriateness of her email communication with my Chambers by email without firstly obtaining the consent and agreement to the content of that communication from the father and the Independent Children’s Lawyer. Indeed, when the mother told me that she had sent a document through this morning via email explaining the situation, I informed her, the father and the representative for the Independent Children’s Lawyer, that although that document was received I have refused to read it in the circumstances. The mother knows now that she is not to contact my Chambers again in future without the prior consent to that contact and its content having been obtained from the other parties.

10. The attitude of the father and the Independent Children’s Lawyer to the mother’s request for some sort of clarification from me was sought. The Independent Children’s Lawyer does not oppose such clarification being given.  The father points to no prejudice in respect of the giving of such clarification and essentially, as such, does not strictly oppose that clarification being given. 

11. Accordingly, I will amend the Order made on 9 November 2018 as set out at the beginning of these reasons.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 13 December 2018.

Associate:

Date:  13 December 2018