Kartha and Kartha

[2009] FamCA 857

FAMILY COURT OF AUSTRALIA

KARTHA & KARTHA [2009] FamCA 857

FAMILY LAW – CONSENT ORDERS

Family Law Act 1975 (Cth)

APPLICANT: Ms Kartha

RESPONDENT: Mr Kartha

FILE NUMBER: MLC 3100 of 2009

DATE DELIVERED: 10 August 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 10 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dickson

SOLICITOR FOR THE APPLICANT: Mills Oakley Lawyers

COUNSEL FOR THE RESPONDENT: Mr Combes

SOLICITOR FOR THE RESPONDENT: Kennedy Wisewoulds

Orders

1. That BY CONSENT there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

2. That the wife deliver the children to the husband’s home at the start of his time and the husband return them to the wife’s home at the end of his time.

3. That the solicitor for the wife engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

4. 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 that publication of this judgment under the pseudonym Kartha & Kartha is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3100 of 2009

MS KARTHA

Applicant

And

MR KARTHA

Respondent

REASONS FOR JUDGMENT

1. One of the difficulties in cases like this is that ultimately it boils down to a very subjective judgment about how to resolve the problem.  The courts make decisions based on evidence and in this case, sadly, there is very little evidence upon which I can make any determination.  As I understand it these children have been travelling backwards and forwards with their father and of late, certainly since the parties saw Mr L, the problems associated with separation anxiety seem to have disappeared. 

2. I am only dealing with this issue for a short period of time apparently, although that might be something that will need to be argued on the next occasion.  It seems to me therefore that the only objective evidence I have got is that set out in Mr L’s report, at paragraph 8.10. 

3. He makes a recommendation that the parties do effectively one piece of travelling each.  The logic behind that is that it will remove from the children the sense of being snatched from one environment in which they are at ease to another in which they obviously have to change their mindset.  It also gives the parents a chance to brief and reassure the children that they are about to go into the other parent’s care and it makes it clear to the children that they are spending time in their father’s care in circumstances where their mother wishes that to happen. 

4. For reasons that I have indicated that is the only evidence that I have and it seems to me that with Mr L’s expertise and having specifically spoken to the parties and looked at the children that is the basis upon which I should make the determination today.

5. I am told there are no other economic factors or other issues that might normally give rise to a subjective judgment so in this case I propose to make an order in terms effectively of the recommendations of Mr L.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  17 August 2009