Kalant & Jordain

[2021] FamCA 33

FAMILY COURT OF AUSTRALIA

Kalant & Jordain [2021] FamCA 33

File number(s):	PAC 2727 of 2015
Judgment of:	GILL J
Date of judgment:	3 February 2021
Catchwords:	FAMILY LAW – Children – orders varying the time that the child will spend with the father – child to spend a block of time before interview with single expert – recovery order – where recovery order issued to lie in chambers in the event that the child is not made available to the father
Legislation:	Family Law Act 1975 (Cth) s 67U
Number of paragraphs:	9
Date of hearing:	3 February 2021
Place:	Canberra
Solicitor for the Applicant:	Bainbridge Legal
Solicitor for the Respondent:	Self-Representing
Solicitor for the Independent Children's Lawyer:	Mary Burgess

ORDERS

PAC 2727 of 2015

BETWEEN:

MR KALANT

Applicant

AND:

MR JORDAIN

Respondent

MARY BURGESS

Independent Children’s Lawyer

ORDER MADE BY:	GILL J
DATE OF ORDER:	3 FEBRUARY 2021

THE COURT ORDERS THAT:

1.The orders dated 5 October 2018 as amended on 1 September 2020 be varied such that the child X spend time with the father from 4 pm on 20 May 2021 until the conclusion of the mother's interview with the appointed expert Dr Q.

2.For the purpose of this order, changeover is to occur at the McDonalds at L Centre at the commencement of time and at the offices of Dr Q at the conclusion of time.  If the expert interviews do not occur in person but by electronic means changeover will occur at a location to be agreed by the parties and failing agreement at Suburb K McDonald's.

3.The 5 October 2018, as amended on 1 September 2020 orders will continue thereafter.

4.Pursuant to s 67U of the Family Law Act 1975 (Cth), a Recovery Order is issued to the Marshal, all Officers of the Australian Federal Police and all Officers of the State and Territory Police Forces of Australia in the terms set out below, but will lie in Chambers pending notification in writing (including by email or facsimile) to the Registrar by the solicitors for the father evidencing that X has not been provided to the father in accordance with the orders for X to spend time with the father in accordance with the above orders, at which point the recovery order shall cease to lie:

(a)You are authorised/directed with such assistance as you require, and if necessary by force, to find and recover the child X (born … 2013, female).

(b)You are required to return/deliver the child to the father, Mr Kalant (born … 1986, male) at an address to be agreed between Mr Kalant and the person effecting such recovery.

(c)For the purpose of finding and recovering the child you are authorised/directed, with such assistance as you require, and if necessary by force to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is, at any time, reasonable cause to believe that the child may be found.

(d)The mother, Ms Jordain (born … 1985, female), is prohibited from again removing or taking possession of the child contrary to the parenting orders in force.

(e)If the mother again removes or takes possession of the child contrary to the parenting orders in force, she may be arrested, without a warrant.

(f)This Order remains in force until 24 May 2021.

5.In order to provide the notification in writing, the solicitors for the father may provide such in the following manner:

(a)The father is to place the Independent Children’s Lawyer on such notice as is reasonably available of the making of an application that the recovery order cease to lie in office.

(b)The father is not required to place the mother on notice of such application.

(c)In the event that such application is made before 5 pm on a working day, the application is to be made to ....

(d)In the event that the application is otherwise made after hours then the application is to be made to ... with the father’s solicitors to also call 1300 352 000, being the National Enquiry Centre, for the matter to be dealt with by the duty registrar.

6.The mother shall pay the cancellation fee charged by Dr Q in the sum of $550.  In the event that the father pays Dr Q’s expenses as described in order to secure the release of the report, the mother shall reimburse the father within a further 28 days.

7.It is directed that a copy of these orders be emailed to Ms Jordain.

8.The contravention proceedings in relation to the contravention applications filed by the father on 1 February 2021 and 2 February 2021 are adjourned to 11 am on 16 February 2021 for hearing.

IT IS NOTED THAT

9.Ms Jordain has had the assistance of the Legal Aid Duty Lawyer Scheme and has been referred to a duty lawyer in respect of these contraventions proceedings.

IT IS ORDERED THAT

10.In the event that a party is unable to be ready for the matter to proceed on 16 February 2021, then that party is required to file and serve an Application for Adjournment by no later than 4pm on 11 February 2021.

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

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 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kalant & Jordain has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

GILL J:

1. By an Application in a Case filed 2 February 2021, the father seeks orders to vary the time that X will spend with him such that X will spend a block of time from 20 May 2021 until 24 May 2021.  What is to occur on 24 May 2021 is an interview process, at this stage a face-to-face interview process, for the proper assessment of the parties and X by Dr Q, the single expert in this case. 

2. Dr Q was scheduled to conduct assessment of X and the parties in January of this year but X was not provided to the father in advance of that appointment, noting that the orders provided that he was to have time with X leading up to the appointment, and X was not provided to Dr Q by the mother for the purpose of the interviews.  The circumstances of such remain as yet unresolved as they are the subject of contravention proceedings which will be dealt with on a later date.  However, it is apparent that X did not attend upon the father or attend upon Dr Q for the purposes of those assessments. 

3. The mother does not oppose X spending time with the father immediately before the freshly scheduled assessment date with Dr Q.  She, however, says that the time should not go from 20 May 2021, which is a Thursday, but rather that it should commence on the Saturday afternoon or evening being 22 May 2021.  She says that this should be the case as it provides the least disruption to X's arrangements and means that she would not miss an additional day of school, noting that X will miss a day of school on the assessment day with Dr Q.  It is apparent that it is undesirable that children miss school if there is not adequate justification for that to take place. 

4. The father puts forward, and is supported in his case by the Independent Children’s Lawyer, that it is necessary in the circumstances of this case for the handover to occur on the Thursday, thereby causing X to miss a day of school in order to make certain that X is delivered to the father prior to the assessment process with Dr Q and thereby that X is provided, or able to be provided by the father, to Dr Q for that assessment process. 

5. The immediate history of the matter then is that X was not provided for the previous assessment process.  Noting that, in neutral terms, given that the circumstances of that have not as yet been established, I note additionally that the effect that that has had has been to delay the trial by a number of months.  The trial was intended to be listed for May 2021 and it is apparent that on Dr Q being unable to schedule a replacement appointment until 24 May 2021, that is now unable to take place.  That makes it inevitable that the trial will be delayed for a number of months for the assessment process to take place, for the report to be prepared and for the parties to finalise the preparations for the trial.  Such an outcome is highly undesirable as it is counter X's best interests and places a heavy burden on each of the parties in this case.

6. It should also be noted that these are proceedings which involve a significant history of non-compliance with orders by the mother.  Without reciting all of the examples of non-compliance, it is sufficient to observe that such non-compliance has reached a stage whereby the mother is currently the subject of a suspended term of imprisonment by virtue of previous contraventions of orders.  Those circumstances speak to the proposition that there is an outstanding risk of non-compliance with the orders which is not assuaged by the mother's assurances that she will comply with the order that would result in her delivering the child to the father and the assessment process taking place.  Under those circumstances, although the proposal made by the father results in some disruption of X’s schedule and involves her missing an additional day of school, it has the prophylactic effect of enabling the father, should X not be provided to him in accordance with the orders, some time to seek that a recovery order which will lie in office may be effected to ensure that X is firstly delivered to him and presented to Dr Q for assessment. 

7. I note that the mother says that she has no desire to have X exposed to the execution of a recovery order or to the attendance at the police to effect the execution of recovery order.  Hopefully, there will be no need for such; however, there is a need to cater for such to take place if there is further non-compliance. 

8. Accordingly, orders will be made generally in accordance with the orders as sought by the father, with minor modifications. 

9. The second matter arises being that there is a cancellation fee by virtue of the non-attendance by the mother and non-attendance by X upon Dr Q.  Although I was prepared to adjourn that aspect of the father's application to the contravention proceedings, the mother consents to paying the fee of $550 incurred in the matter, noting that she may require some time to pay it. 

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       3 February 2021