Lisle and Lisle

[2009] FamCA 1236

FAMILY COURT OF AUSTRALIA

LISLE & LISLE [2009] FamCA 1236

FAMILY LAW – CHILDREN – Anticipatory breach of previous orders – No ambiguity found

APPLICANT: Mr Lisle

RESPONDENT: Ms Lisle

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission NSW

FILE NUMBER: SYC 31 of 2008

DATE DELIVERED: 9 December 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rose J

HEARING DATE: 9 December 2009

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Weber

Orders

1. That the father’s Application in a Case filed in Court today seeking an order restraining the mother from proceeding with the child to the Buddhist retreat for the period 9-18 December 2009 is dismissed.

2. That the father’s Application in a Case filed in Court today seeking other orders is stood over for determination with other outstanding applications.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYG 31 of 2008

MR LISLE

Applicant

And

MS LISLE

Respondent

REASONS FOR JUDGMENT

Introduction

1. In these proceedings an urgent Application in a Case was filed in Court today by the father, who is unrepresented.  I gave leave for that Application to be listed on an urgent basis following the request of the father, due to his contention that the mother’s plan to take the parties’ youngest child to a Buddhist study retreat was likely to be in breach of orders made on 13 March 2009.  I have read the affidavit in support sworn by the father.  Copies were served by him, being unsealed copies, on the mother and the Independent Children’s Lawyer.

2. I have heard submissions from the parties in relation to this matter.  The relevant orders are Orders 1, 4.31 and in particular, Order 4.32. 

Conclusion

1. It is clear to me from the terms of that Order that the restriction on the mother to take the child to a Buddhist study retreat for no more than once each year was subject to a precondition.  The precondition being “that upon the child, [Y], born […] December 2004, commences full-time education”.

2. It is agreed between the parties that the child has not commenced full-time education as yet.  It is anticipated that that will occur next year.  There is nothing in that Order or any other Order that restricts the mother from taking the child on more than one occasion to a Buddhist retreat pending the child commencing full-time education.  However, there are conditions which must apply in the event of the child accompanying the mother to such a Buddhist retreat.  The conditions are set out in Order 4.32.  Those conditions continue to apply.

3. The father had sought other orders in his Application, notwithstanding that this matter was listed on an urgent basis with rearrangements of Court list to accommodate his request, on one issue only, that the threatened breach of Orders made on 13 March 2009 (“the Orders”). Consequently, as I have indicated to the father, the balance of his Application will be stood over to be dealt with together with all other outstanding Applications once the anticipated updating report from Dr M, or an alternative child and family psychiatrist, has been received.

4. In relation to that matter, Orders and Notations were made by me on

   
   

   12 November 2009 setting out the terms upon which it was expected that, perhaps, the Legal Aid Commission may fund the cost of an updated report.  Unfortunately, neither of the parties seem to be focused on dealing with that matter on an urgent basis as it was only last week that the father states that he left the completed Form 13 and attached relevant documents at the Legal Aid Commission whilst the mother only sent her document, albeit without attachments, on Monday 7 December 2009.

5. It is rather ironical that the parents, who claim to be deeply concerned about issues affecting their child and ask courts to act urgently as soon as a request is made, yet they themselves do not apply themselves with the same urgent basis that they ask others to do.  Hopefully, they will now give this matter priority over other matters and complete and furnish the Form with attachments as requested by the Legal Aid Commission so that the matter of an updated report can be progressed as soon as possible.

6. I have indicated to the parties that the Independent Children’s Lawyer will kindly furnish immediately her facsimile transmission number so that copies of the relevant documents can be sent to her either today or tomorrow and hopefully further progress can then be made.  It follows from the review that I have given of the orders that there is no basis whatsoever for an injunction to restrain the mother from having the child accompany her to the planned Buddhist study retreat, which is for the period 9 to 18 December 2009.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose  

Associate: 

Date:  16 December 2009