Kierson and Anor and Fliss

[2007] FamCA 1542

FAMILY COURT OF AUSTRALIA

KIERSON AND ANOR & FLISS [2007] FamCA 1542

FAMILY LAW – CHILDREN – With whom a child spends time – Orders – Contravention – Where no expressed wishes from Child against spending time – Where no reasonable excuse otherwise – Directions to comply made

FAMILY LAW – CHILDREN – With whom a child lives – Relocation – Where interim relocation orders requested – Where trial listed for next month – Where no firm evidence of arrangements made in respect of new location – Application dismissed

Family Law Act 1975 (Cth)

FIRST APPLICANT PATERNAL

GRANDMOTHER:

Mrs Kierson

SECOND APPLICANT FATHER:

Mr Kierson

RESPONDENT MOTHER: Ms Fliss

FILE NUMBER: BRC 1812 of 2007

DATE DELIVERED: 8 November 2007

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 8 November 2007

REPRESENTATION

COUNSEL FOR THE FIRST APPLICANT: Mr Hiscox of Counsel

SOLICITORS FOR THE FIRST 

APPLICANT:

Harvey & Associates, Solicitors

SOLICITORS FOR THE SECOND

APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT: Mr Moore of Counsel

SOLICITORS FOR THE RESPONDENT:	Towns-Wilson Lawyers
INDEPENDENT CHILDREN'S LAWYER	Ms Stark, Solicitor from Legal Aid appeared as the Independent Children’s Lawyer

Orders

1. The Applicant Paternal Grandmother’s Application in Form 2 filed 5 November 2007 is dismissed.

2. Costs reserved.

IT IS NOTED that publication of this judgment under the pseudonym Kierson & Fliss is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1812 of 2007

MRS KIERSON

Applicant Paternal Grandmother

And

MR KIERSON  

Applicant Father

And

MS FLISS

Respondent Mother

REASONS FOR JUDGMENT

1. As a result of orders made some time ago the child … a seven year old girl is residing with the paternal grandmother in the E area north of Brisbane.  The father is in Sydney operating a business.  The mother resides in the Brisbane area.  The orders provide for the mother to have very limited contact with her daughter - a couple of hours a fortnight, to take place at the E Contact Centre.

2. The difficulty for the mother at this point in time is she is not having any contact, even such limited contact as two hours a fortnight.  When I questioned counsel for the paternal grandmother as to why the contact is not taking place, I was told that on one occasion the child of the parties was sick.  At another time they were packing, and another time they were away looking for a rental property.

3. There was no suggestion, in any of the information placed before the Court, that the child is saying, "I don't want to go to the contact centre to see my mother."  It would be very important that the paternal grandmother take the child this weekend, this Saturday, to the contact centre to start complying with the orders that are in place.

4. I propose to dismiss the paternal grandmother’s application.  It may be in the fullness of time contact between mother and child will be limited in such circumstances where relocation is desirable or relocation is a practical necessity.  For the present time I take into account the following facts; the paternal grandmother has no home to go to in Sydney.  It is proposed she will be staying with relatives in Sydney’s North Shore area.  The father lives in Sydney’s Inner West.  I have no information as to the names of the relatives, the aunt and uncle, no information as to what sort of accommodation they can provide, no information that they are willing to have the paternal grandmother, the child and the father all suddenly descend on their home.  It is not a well thought out relocation.  I accept that in her interview process yesterday the Family Consultant Ms T was able to glean from the paternal grandmother that, if necessary, she can find accommodation in Brisbane for the next month.

5. The matter is listed for trial on 7 December.  When the Court can look at the matter in considerable detail at that time I see no point allowing a temporary relocation.  The Appeal Court authorities suggest that it is only in special circumstances that a Court would permit relocation on an interim basis, particularly in circumstances where a final hearing commences in less than a month's time.

6. The paternal grandmother has been remiss in not providing contact in accordance with the terms of the orders.  There is weight in the submission made by the independent children's lawyer, about condoning that behaviour if the relocation was to be permitted at this stage.  There is the fact that the child is going to be taken out of school.  It appears that she is well settled there.

7. There is no proposal set out by the father or the paternal grandmother what school the child will attend and what arrangements have been made for such attendances, how far it is from the home or where they are going to be living?  In any event, in the next 30 days it is apparent that there could be at least three changes of accommodation for the child.  She leaves the E area property.  She goes to Sydney’s North Shore and the father is actively trying to rent property in various areas of Sydney as I recall him saying.  It seems to me that whilst the child will, of necessity, have to move because of the sale of the current house, it is preferable that such move disrupt the child’s normal routine as little as possible.  To allow the move will result in the mother spending no time at all with her daughter.  The matter can be canvassed again at the hearing before me on 7 December.

   ORDER DELIVERED  [11.34 am]

   RECORDED:  NOT TRANSCRIBED

   ORDER DELIVERED  [11.35 am]

   RECORDED:  NOT TRANSCRIBED

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate

Date: 8 November 2007