Herz and Picot and Picot and Picot
[2008] FMCAfam 1401
•22 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HERZ & PICOT and PICOT & PICOT | [2008] FMCAfam 1401 |
| FAMILY LAW – Interim parenting orders – relocation – two fathers. |
| Family Law Act 1975 – Part VII |
| Goode and Goode (2006) 36 Fam LR 422 Morgan and Miles (2008) 38 Fam LR 275 |
| Applicant: | MR HERZ |
| Respondent: | MS PICOT |
| File Number: | NCC 1885 of 2008 |
| Applicant: | MR PICOT |
| Respondent: | MS PICOT |
| File Number: | NCC 2306 of 2008 |
| Judgment of: | Lapthorn FM |
| Hearing date: | 17 December 2008 |
| Date of Last Submission: | 17 December 2008 |
| Delivered at: | Newcastle |
| Delivered on: | 22 December 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kelly |
| Solicitors for the Applicant: | Bridge St Lawyers |
| Solicitor for the Respondent: | Self Represented |
| Solicitors for the Applicant: | Ms White |
| Solicitors for the Applicant: | SE Michel & Co |
| Solicitor for the Respondent: | Self Represented |
ORDERS
That on or before 2 January 2009 the mother cause the children to return to live in [G] pending further order;
That the children [L] born in 1997 and [R] born in 1999 spend time with their father from 12 noon 3 January 2009 to 12 noon 24 January 2009;
That on and from 12 noon 24 January 2009 the orders made
19 December 2006 by consent in the Local Court [G] be reinstated with order 2.1 thereof commencing Friday 6 February 2009;
That pending further order, the child [C] born in 2007 live with the mother;
That commencing 3 January 2009 and pending further order the child [C] spend time with her father each Saturday, Tuesday and Thursday for two hours on each of those days at times agreed between the parties and failing agreement from 12 noon to 2pm;
That the father, Mr Herz, is hereby restrained from consuming any illicit drug or alcohol for a period of 24 hours prior to and during any period of time the child is spending time with him;
That pursuant to s.68L of The Family Law Act1975 an Independent Children’s Lawyer be appointed for the children [L] born in 1997, [R] born in 1999 and [C] born in 2007 and the Legal Aid Commission of New South Wales is requested to provide such representation. The parties are to provide to the Legal Aid Commission at P.O. Box K847, Haymarket NSW 1238 forthwith all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.
That the father Mr Herz undergo supervised random urine analysis drug testing forthwith upon the request of the Independent Children’s Lawyer, such request to be not more than once in every calendar month, and provide the results of same to the Independent Children’s Lawyer and the mother as soon as they become available and that such testing be collected in accordance with the chain of custody protocol specified in AS/NZ4308:2001;
That these proceedings be transferred to the Family Court of Australia Newcastle Registry.
IT IS NOTED that publication of this judgment under the pseudonym Herz & Picot and Picot & Picot is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC 1885 of 2008
| MR HERZ |
Applicant
And
| MS PICOT |
Respondent
NCC 2306 of 2008
| MR PICOT |
Applicant
And
| MS PICOT |
Respondent
REASONS FOR JUDGMENT
Introduction
The mother of 3 children [L] aged 11, [R] aged 9 and [C] aged 19 months has relocated from [G] in New South Wales to [C] in Queensland with the children. The fathers of the children want them to return.
The father of the 2 boys [L] and [R], Ms Picot, lives in [G] and has been employed as a [omitted] with the same company in the [G] area for 21 years. Mr Picot’s parents also live in the [G] area.
The father of [C], Mr Herz lives in [U], not far from [G], and works as a [omitted] in his father’s business. Mr Herz’s parents, his sister and her family live in the [G] area.
The mother, Ms Picot, has a sister and her family living nearby on the Sunshine Coast but her mother, a brother and another sister remain living in the [G] area.
I was asked to make interim parenting orders pending a final hearing and to consider transferring this matter for hearing in the Family Court at Newcastle or the Federal Magistrates Court in Brisbane. I indicated to the applicants that it may be preferable for the matter to be determined on a final basis rather than by way of interim hearing however I was persuaded to hear the interim hearing in the circumstances where the mother’s removal of the children was alleged to be unilateral and the effect of the move meant the children would not see their fathers except during school holidays.
Although by Mr Picot and Mr Herz filed separate applications I have consolidated them so that the parenting matters of all three children can be considered together.
Background
Mr and Mrs Picot were married in 1991 and separated in 2002. Their two children lived primarily with the mother on separation and had irregular contact with their father until early 2004 when interim orders were made. In March of that year [R] fell from a ferris wheel whilst in the care of the father and suffered an acquired brain injury. He continues to receive regular medical attention and has experienced difficulties at school.
The mother refused to allow Mr Picot to spend any time with the children until further orders were made. There were lengthy proceedings between Mr and Ms Picot culminating in consent orders being made on 19 December 2006. These provided for the children to spend alternate weekends with the father and time during two school holiday periods.
Mr Herz and Ms Picot lived in a de facto relationship from January 2005 until December 2007. They lived in [U] during their relationship however the mother returned to [G] upon separation. The parties disagree as to many facts deposed to in their affidavits however I am satisfied that Mr Herz did not spend time with the child [C] until the parties had mediation at Centracare. According to Mr Herz they reached agreement in April 2008 for him to spend time with [C] three times a week for two hours and that the length of time would increase over time. The mother did not sign the agreement but after a few weeks Mr Herz commenced spending time with [C] largely in accordance with that agreement. Apart from a fortnight when the mother was away from [G] in July Mr Herz saw [C] from the end of April until the mother’s move to Queensland in August.
The Evidence
In support of his case Mr Picot relied on:
a)His Initiating application filed 5 September 2008; and
b)His affidavits filed:
i)5 September 2008;
ii)23 October 2008; and
iii)24 November 2008.
Mr Herz relied on:
a)His Amended Application filed 2 December 2008; and
b)His affidavit filed 2 December 2008.
Ms Picot relied on:
a)A document entitled Final Orders;
b)Her affidavits filed:
i)19 November 2008;
ii)19 November 2008; and
iii)11 December 2008.
Two documents were tendered in the proceedings. Exhibit A1 was a bundle of orders made in previous proceedings between Mr and
Ms Picot. Exhibit B1 was a number of maps from Travelmate.com.au.
Much of the evidence is in dispute between the parties. These being interim proceedings, conducted on the papers, make it difficult for the court to determine the disputed questions of fact.
The mother owns a house in [G] which she inherited from her father. She lived there with the children before relocating to Queensland. She does not want to return to [G] believing there are better opportunities for the children in Queensland. The mother says the children are settled and the boys are doing well at school. They have developed a bond with their aunt and her family and have access to medical professionals for their ongoing needs.
She proposes the boys spend time with Mr Picot in the mid year school holidays and for 3 weeks over the Christmas school holiday break and that [C]’s time with Mr Herz be supervised.
Ms Picot alleges that Mr Herz abuses alcohol and drugs to such an extent that his care of [C] would be compromised. Mr Herz denies this. The mother denies his evidence that during their relationship he was involved in the child’s care saying that he spent much of his time away from the home. The mother said that she would be somewhat comforted if Mr Herz was restrained from using illicit substances or alcohol 24 hours prior to and during any time he spends with [C].
I gained a sense that her concerns would not be completely allayed however. Clearly there is a lack of trust between Mr Herz and the mother.
This trust will take some time to repair and was not helped by Mr Herz taking [C] to a family reunion in the Hunter Valley on 8 August against the mother’s wishes. She was not returned for two days. Mr Herz knew that [C] was still being breast fed. Although he had the assistance of a number of members of his family this is an example of him being self focused rather than child focused. The parties disagree as to the child’s condition upon her return to the mother however I am satisfied that Mr Herz’s actions were inappropriate and had the potential to cause distress to the very young child. The mother’s concerns for the child’s welfare whilst with Mr Herz will be well founded if he continues to place his own needs above those of the child.
The mother says she left the [G] area as a result of continued sexual harassment and unwanted sexual advancement from Mr Picot. Mr Picot denies the allegations. The mother did not obtain an apprehended violence order or raise her sexual harassment complaint with the police. Mr Picot also denies helping the mother pack her vehicle the night she left for Queensland. The mother implied by this evidence that he consented to the move. He says that after spending the afternoon with [L] and [R] they returned to the mother’s home to seek her approval for the boys to spend the night with him. He says that it was at this point that she informed him that she was leaving that evening. He says that he tried to persuade her against taking the children but did not physically stop her for fear of upsetting the children further or causing the mother to call the police.
Mr Picot contacted his solicitor the following day and although he had some telephone communication with the boys his attempt to serve the mother with an application failed. On 5 September I ordered substituted service on the maternal aunt but the aunt informed the solicitor for Mr Picot that the mother had moved out of her residence and she did not know where the mother was living. I find this hard to believe especially as the mother’s nephew went to live with her.
The mother concedes that at no time did she tell Mr Herz of her intentions to move. Mr Herz had filed his Initiating Application on
31 July but the mother had not been served by the time she left [G].
I am satisfied that in relation to Mr Herz the mother’s move was unilateral and with out notice. In relation to Mr Picot the circumstances surrounding whether he consented to the move or not will have to be determined at the final hearing. Suspicions remain however that the difficulty he had in affecting service on the mother is consistent with an attempt by her to remove herself and the children from him.
Mr Picot’s application came before the court in Armidale on
18 September when orders were made for the return of the children to the [G] area within seven days. This was not complied with and a warrant was issued for the mother’s arrest on 29 October 2008. The mother appeared before Federal Magistrate Baumann in Brisbane on
6 November. His Honour discharged the warrant and the order for the return of the children to [G] and listed the matter before me.
The mother included in her affidavit material, medical evidence in relation to [R]. She told the court that [R] was able to receive all the medical care he needed in Brisbane which was no more than an hour and a half away from [C] and that this care was as good as if not better than that which he could access in [G] and elsewhere in New South Wales. Twice a year he has been travelling to Sydney to see specialists.
Legal Principles
Parenting proceedings are governed by the provisions of Pt VII of the Family Law Act1975. In determining the outcome of parenting matters the Court must consider the best interests of the child as the paramount consideration.[1] That is the overriding principle.
[1] Sectjon 60CA
The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[2]
[2] Section 60B lists the objects and principles for Pt VII
In determining what is in a child’s best interests I must consider the matters set out in s.60CC. Even though these are interim proceedings the court must still have regard to the legislative framework and consider the competing proposals against that framework.[3] Because of the truncated nature of interim proceedings however the necessary enquiry may be abridged.
[3] Goode and Goode (2006) 36 Fam LR 422; Morgan and Miles (2008) 38 Fam LR 275 at p. 291
When making a final parenting order the court must apply a presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility.[4] This presumption may not apply or may be rebutted in cases of child abuse and/or family violence or when the evidence establishes that it is not in the children’s best interests for it to apply.[5] In interim proceedings the presumption applies by virtue of s.61DA(3) unless the court considers that it would not be appropriate for it to be applied.
[4] Section 61DA
[5] Section 61DA(2) & (4)
In the event that the Court orders the parties to have equal shared parental responsibility for the child the Court must apply the provisions of s.65DAA which provide for a consideration of the children spending equal time with the parents. If the court finds that is not in the child’s best interests or reasonably practicable then the court must consider the child spending substantial and significant time with the parents.
Presumption of Equal Shared Parental Responsibility
Whilst the mother has made a number of allegations against both fathers there is no evidence before the court to warrant not applying the presumption at least in the interim. In arriving at that decision I have taken into account that the mother alleges Mr Picot has sexually harassed her and that Mr Herz has a dependency on illicit substances. Both men deny the allegations and I am not in a position to determine the veracity of them. This no doubt will be explored at the final hearing.
Consideration of Equal Time or Substantial and Significant Time
Having applied the presumption I am required to consider the children spending equal time with the parents pursuant to s.65DAA.
I turn firstly to [C]. She is only 19 months old and has lived with her mother primarily for the vast majority of her life. Between the end of April and mid August 2008, and apart from a fortnight period in July, she saw her father three times a week for up to two hours at a time. She is still being breast fed but the mother intends to wean her off this. Mr Herz does not seek that she spend equal time with both parties and it is clearly not in such a young child’s best interests to be away from her primary attachment, and more likely only attachment figure, for such a period of time. With children of such a young age it is important that that attachment not be compromised. It is also important however that a child develops an appropriate bond with a non primary carer parent. Usually this is achieved by them spending regular and frequent periods of time of short duration such as a couple of hours. Such an arrangement will not be possible if the parties continue to live so far apart.
Mr Herz’s application seeks extensive time but at the hearing he, through his counsel, submitted that the appropriate amount of time is to resume the parenting plan that was never signed by the mother. The only way this could be achieved would be if Mr Herz moved to live near the mother in Queensland or the mother returned to the [G] area.
Mr Picot’s initial application sought that there be a week about arrangement for the two older children. At the hearing he submitted that an appropriate order in the event of the children returning to [G] would be for the resumption of the 2006 orders. An alternate weekend arrangement such as that provided for in the 2006 orders can not operate whilst the mother remains living in Queensland unless
Mr Picot also moved to live closer to her.
The mother indicated that if the court was to order the children to live in [G] she would return there as their primary carer pending the final hearing. Mr Picot told the court through his lawyer that he would not be able to move to the Sunshine Coast as he has been working with his current employer for the past 21 years and would not be able to make that transition, especially in the interim.
Mr Herz indicated that he also could not move to the Sunshine Coast because he is employed in a family business and he would not have employment if he was to move.
I accept that it would not be appropriate for both fathers to move in the interim given the need for continued employment in order to financially support their children and the longer term position may be different at a final hearing.
I propose to consider the appropriate time arrangements when I look at the factors under s.60CC(2). In considering those factors I will also determine whether it is appropriate for the children to remain living on the Sunshine Coast or should return to the [G] area.
The primary considerations: s.60CC(2)
The benefit to the child of having a meaningful relationship with both of the child’s parents
The children [L] and [R] have had a close relationship with their father. Whilst there have been significant legal proceedings over the years I am satisfied that the children have been able to see their father until the mother’s move in August of this year. Whilst these children are older and may be able to maintain a relationship with their father from a distance it is difficult to determine at an interim hearing the extent of their current relationship and their ability to maintain it. At a final hearing the court will be much better placed to determine this issue. What is clear however is that the mother’s move away has certainly made it more difficult for the boys to maintain their relationship with their father.
Clearly a child who is only 19 months of age needs to spend regular time with her non primary carer parent. She will be unable to develop a bond with Mr Herz unless she sees him regularly. It is the development of this bond which will lead ultimately to having a meaningful relationship with him. The mother’s decision to relocate has put in jeopardy the chances of this bond developing as naturally as possible.
The distance between where the children and the fathers live makes a continuation of their meaningful relationship with them difficult. Consideration under this heading would tend to favour the return of the children to [G] or in the alternative a move by the fathers to the Sunshine Coast which I have already considered to not be appropriate given these are interim proceedings.
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 is very concerned about Mr Herz’s use of illicit substances. He denies the allegations and indicates that he is prepared to undergo drug testing. During the course of the hearing the mother indicated that she would be more comfortable if Mr Herz was restrained from consuming any illicit substance or alcohol 24 hours prior to and during any time that he spends with [C]. Mr Herz would not oppose such an order being made.
Apart from that issue this is not a case where the children would be exposed to abuse or family violence.
The additional considerations: s.60CC (3)
Any views expressed by the child and any factors that the Court thinks are relevant to the weight it should give to the child’s views
Whilst the mother says the boys would like to stay in Queensland there is no independent evidence as to the views. This may be of significance at the final hearing at least in relation to the two boys.
The nature of the relationship of the child with each of the child’s parents
It is difficult to determine the current nature of the relationship the children have with each of the parents although I am satisfied that they would have a close relationship with their mother given she has been their primary carer all of their lives. I am satisfied that [L] and [R] saw their father regularly and that their relationship was also strong.
Mr Herz was attempting to develop his relationship with [C] when the mother moved to the Sunshine Coast.
This is not a consideration that can be determined at an interim stage.
The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent
This is an important consideration as the fathers allege that the mother’s actions indicate a clear desire to sever their relationship with the children.
Mr Picot submitted that exhibit “A1” indicates that there have been lengthy proceedings that he has had to bring in order to ensure that he has a relationship with the children. The mother has previously been found to have contravened earlier orders.
Whilst this issue will be explored at the final hearing I am satisfied that the mother’s move indicates a lack of consideration of the needs of the children to have a continuing relationship with their fathers.
The likely effect of any changes to the child’s circumstances including the likely effect on the child of any separation from either of his or her parents or any other child or other person with whom he or she has been living
The mother and children are receiving support from her sister and family on the Sunshine Coast but she does have the support of family in [G]. The paternal families are also in the [G] area. If the children were returned to [G] then they would be able to see their fathers and extended members of the paternal families more often.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
According to exhibit B1 the time to travel between [G] and [C] would be 10 hours. This would not include rest stops.
The distance is too great for the children to spend frequent periods of time with their fathers. There are no direct flights between the two areas.
The capacity of each of the child’s parents and any other person, including any grandparent or other relative of the child, to provide for the needs of the child including emotional and intellectual needs
I am satisfied that Mr Picot and Ms Picot both have the capacity to provide for [L]’s and [R]’s needs including their emotional and intellectual needs.
Mr Herz has not had the primary care of [C] and the parties disagree as to the care he did provide prior to their separation. The mother is very concerned about his reliance on drugs and alcohol and therefore has sought certain restraints. She would prefer his time to be supervised however there is insufficient evidence for the court to warrant such a restriction.
The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents
Both fathers submitted that the mother has shown an attitude that was focused on her own needs rather than on the needs of the children to have an ongoing relationship with them.
Mr Herz’s retention of [C] for two days is an example of his lack of responsibility towards her care.
Any family violence involving the child or a member of the child’s family and any family violence order that applies to the child or a member of the child’s family if the order is a final order or the making of the order was contested by a person
There is no family violence order in place and despite the mother’s allegations about Mr Picot’s sexual harassment of her she did not seek any help from the police.
Any other relevant consideration
The mother says that [R] was having difficulty at [X] School in [G] and he has now settled into his new school: [Y] School. It can be seen from the material annexed to the mother’s affidavit that [R] was clearly having difficulties at [X] School and appears to have made friends and settled somewhat although still experiencing difficulties at [Y] School.
[R] was assessed by a speech pathologist from Kaleidoscope in Newcastle in July of this year and a number of recommendations were made. It was suggested that he obtain funding for tutoring and speech pathology intervention. I have no evidence that this has been followed up.
In August an occupational therapy review assessment was conducted. The occupational therapist reported that it was difficult to determine to what extent his brain injury and the frequent changes in school and home circumstances that had occurred over the time that she had been seeing [R] have impacted on his ability to progress. Less than a fortnight later the mother moved again causing further changes to his home life and schooling.
Earlier in 2008 Dr M a clinical neuropsychologist conducted an assessment of [R]. Her detailed report was annexed to the mother’s affidavit. She concluded that the underlying neurological injury appeared to have stabilised but the effects of the injury were likely to be ongoing. [R] has experienced significant difficulty maintaining his level of intellectual functioning causing the gap between him and his peers to widen. This is likely to continue over time and he is at risk of further intellectual decline. According to Dr M however:
“He nevertheless has the opportunity to benefit from interventions to reduce the impact of his executive deficits on his day to day functioning. He would benefit from interventions to address his learning, behaviour and social skills that are highly structured, consistent and implemented in the appropriate context. Considering that there are ongoing effects of the injury to [R]’s executive skill development, as well as the potential for interventions to be successful, there is still much scope for change in [R]’s overall profile.”
He will continue to need regular neuropsychological assessment every 2 to 3 years.
Dr M concluded:
“[R]’s behaviour is oppositional, aggressive and he lacks remorse for his actions. He also lacks insight into the impact of his behaviour on others. [R] also has social difficulties in the clinically significant range. He has trouble forming friendships and is not well accepted by his peers. These attributes place him at risk of long-term behavioural and social dysfunction. [R], his family and school, would benefit from clinical psychology intervention to improve his long-term behavioural and social prognosis.
[R] presents with a range of complex learning, behavioural and social issues. [R] would benefit from long-term case management to address his needs as they arise. It is anticipated that the need for Case Management intervention will increase at times of transition when the academic, behavioural and social expectations are increased. [R] has access to the New England Brain Injury Rehabilitation Program, which can provide such a service. The program staff has specialist knowledge of the difficulties, as well as the interventions, available for children with an acquired brain injury. Support can also be provided to the family and school. It is envisaged that the close involvement of the local rehabilitation service and the subsequent uptake of services, will help to improve [R]’s general prognosis.”
I am satisfied that the mother followed up with [R]’s regular assessments however I do not have sufficient evidence as to her following of recommendations. The move to Queensland less than a fortnight after the occupational therapist spoke about the frequent changes in home and school life may suggest the mother does not always follow those recommendations. I am not prepared to conclude that at this stage. The mother says that all of [R]’s medical needs can be catered for in Brisbane which would mean less travelling for her and the child. I would be surprised if that was not the case but I am satisfied from the material the mother has annexed to her affidavit that [R] had access to a number of supports to meet his needs whilst living in [G]. I am satisfied that at least at the interim stage there is no greater benefit for the child living in the Queensland area in order to receive these services.
One important consideration however is the ability of [R] to change schools. The evidence clearly shows that he needs some form of consistency and routine and that he finds change difficult. We are at that time of the year where the school year has ended and if there was to be any move this is an appropriate time. I raised concern that if the children were to be returned to [G] in the interim but ultimately moved to Queensland at the end of a final hearing there would in effect be double movement. It was submitted by Mr Picot that whilst that maybe the case [R] would not be moving to a new school but return to [X] School and continue with the many supports that he had there. He was at [X] School for the three terms of the 2008 school year and only one term at [Y] School. I accept that submission.
Discussion
The court must look to the circumstances surrounding the development of the current situation.[6] Clearly the mother’s actions in moving to the Sunshine Coast have meant that the children’s ongoing relationship with their fathers has been compromised. The mother does not have to show compelling reasons for her move however the court must take into account the effect of such a move on the children. I have already found the move to be unilateral at least in relation to Mr Herz and have expressed suspicion that it may also have been in relation to Mr Picot.
[6] Morgan and Miles (2008) 38 Fam LR 275 at p. 292
In arriving at my decision to order the mother to return the children to live in [G] pending a final hearing I have taken into account the mother’s decision to move; the ability of [R]’s needs to be meet in the [G] area; the need for [C] to develop her bonding with Mr Herz; the need for the two older boys to maintain their relationship with their father; and the difficulty of ensuring that the children spend regular time with their fathers if they remain on the Sunshine Coast.
I accept neither father can easily move to the Sunshine Coast, at least in the interim; I accept the mother has a house in [G] that she would be able to use for herself and her children; that she would have family support in [G]; and the children would be able to spend time with extended members of the paternal and maternal families in the [G] area.
I accept the mother has family support in Queensland and the boys appear to have settled into school there. I am satisfied that [R] would have access to medical attention.
When I weigh all of those considerations I am satisfied that the children should live in [G] until the court is in a position to more thoroughly explore the competing applications at a final hearing.
The two older boys are to be returned to [G] by 2 January 2009 so that they can spend three continuous weeks with Mr Picot as part of the school holidays commencing 12 noon on Saturday 3 January and concluding at 12 noon Saturday 24 January. The orders made in 2006 will resume at 12 noon Saturday 24 January 2009.
It is important for [C] to spend time with Mr Herz for short periods such as was happening prior to the mother’s move. This is to commence in the first week of January 2009 and occur on Tuesdays, Thursdays and Saturdays. The first day being Saturday 3 January 2009.
Transfer of the Proceedings
Turning to the application for transfer of the proceedings I am satisfied that as all parties will be living in New South Wales pending the final hearing it will not be convenient for the matter to be heard in Brisbane although the Federal Magistrates Court would have been able to provide an earlier hearing.
Mr Kelly submitted that the matter is likely to take at least 5 days given that there will be a number of witnesses from the extended families; there will be an Independent Children’s Lawyer; there may be medical evidence as well as a family report. In those circumstances I am satisfied that this matter is one that is more appropriately dealt with in the Family Court.
For these reasons I make the orders set out at the commencement of this judgment.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Lapthorn FM
Associate: Helen Drysdale
Date: 22 December 2008
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