Maher and Maher
[2007] FMCAfam 1211
•28 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MAHER & MAHER | [2007] FMCAfam 1211 |
| FAMILY LAW – Parenting orders – very significant level of dispute on fundamental issues precludes interim judgment. |
| Family Law Act 1975, s.60CC(2)&(3) |
| Goode v Goode (2006) 206 FLR 212; [2006] FMCA 218 Hungerford v Tank [2007] Fam CA 637 |
| Applicant: | MR MAHER |
| Respondent: | MS MAHER |
| File Number: | SYM 4306 of 2006 |
| Judgment of: | Lucev FM |
| Hearing date: | 28 November 2007 |
| Date of Last Submission: | 28 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 28 November 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Dura |
| Solicitors for the Applicant: | Barkus Edwards Doolan |
| Counsel for the Respondent: | Mr Lloyd |
| Solicitors for the Respondent: | Harris Freidman Hyde Page |
ORDERS
The application in the case made on 8 November 2007 is dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Maher & Maher is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYM 4306 OF 2006
| MR MAHER |
Applicant
And
| MS MAHER |
Respondent
REASONS FOR JUDGMENT
(Ex tempore edited from transcript)
In this matter consent orders were made on 17 January 2007 with respect to parenting issues, in particular, with whom the child should live and spend time. Subsequently, a report has been prepared by Ms Anderson in accordance with the orders that were then made and she has made certain recommendations. It appears from the father's affidavit filed in the application in a case that the father disagrees with, and strongly, to the extent that is clearly indicated in the affidavit that Ms Anderson would be cross-examined at any final hearing in relation to a number of the matters about which she reports.
On 6 September 2007 this matter was listed for final hearing in July 2008 and orders were made at that time for the preparation of a family report. That family report was to deal with certain matters and most pertinently, in my view, documents and reports from Ms Anderson, which are available, as I understand it, and documents and reports from Unifam, which are not available, as I understand it, and from reading the affidavits it appears that the parties are still involved in the Unifam process.
The affidavit material filed by the father indicates that there has recently been a change in the father's domestic arrangements and that he has repartnered. However, reading both the mother and father's affidavit, having regard to their submissions which were made to me earlier today, it is apparent that there are very significant issues in dispute in this matter on the material that is presently before the Court.
The issues which are in dispute before the Court and which the Court might be required to make findings on an interim basis include, for example, the contents of Ms Anderson's report and its conclusions, the father's parenting capacity which is commented upon in the Anderson report but which will also be the subject of the further family report which has been ordered but which is not yet in. Clearly it would be very difficult for the Court to deal with that issue of parenting capacity and the contents of Ms Anderson's report at an interim stage. The Court also takes the view that it is probably inappropriate to do so, given that that is a matter which will be the subject it appears of strong challenge at final hearing.
The Court will also be required to make findings in relation to fundamental issues such as parental communication. Again from reading the affidavit material presently before the Court, it is clear that the parents have fundamental communication issues and continue to do so to the extent that there have been problems, it would appear, at changeovers and there have been threats to refuse to use the communications book. Clearly the parents disagree about the interim arrangements proposed by the father in the interim orders now sought, and again that is a matter touched on in the affidavit material.
Other issues which are in dispute include the child's sleeping arrangements, the amount of time the father has available to spend with the child and issues related to the care of the child: health, bathing and eating.
In short, it is clear from the material presently before the Court that the Court would not be in a position to make an interim determination of this matter because of the level of dispute on the facts. It would, therefore, not be in a position to make any sensible findings in relation to the ss.60CC(2) and 60CC(3) factors as it would otherwise be required to do in accordance with the Full Court's decision in Goode & Goode [1] followed in Hungerford & Tank[2] by another Full Court in respect of final hearing.
[1] (2006) 206 FLR 212; [2006] FMCA 218.
[2] [2007] Fam CA 637.
The Court also considers that it is inappropriate in the present circumstances for it to be put in a position where effectively Ms Anderson's report is challenged on an interim basis in circumstances where it is to be challenged and cross-examined on at a final hearing, and in circumstances where the family report, which was ordered on
6 September 2007, is not yet before the Court and is outstanding.In those circumstances, the Court considers that the application in a case ought to be dismissed. It is incumbent upon the Court in the circumstances to say that clearly this is a matter which ought to settle in respect to parenting issues. I say to both parents' solicitors and counsel that this is a matter which seems to the Court ought settle and that the parties effectively ought to go away and try harder to make it settle and set aside the differences that the parents have, particularly in respect of communication issues and make sure that any settlement is in the best interests of the child. If that is not to be, it is not to be and the matter will be heard finally by the Court and determination made by the Court. But I say to the parties you are much better off deciding this yourselves than leaving it to somebody else. It will not be for me but one of my colleagues to decide, but because they do not necessarily share the values that you have or had and they do not necessarily view matters in the same way you might when you get together and think about the best interests of your child, so it is much better that you resolve the matter than the Court.
As I have indicated, for present purposes the order for today will be that the application in a case brought on 8 November 2007 be dismissed.
In the circumstances, but only just, the Court is not persuaded that there is sufficient in the circumstances of this case to warrant departure from the normal order that the parties meet their own costs in family law proceedings, and there will not be an order for costs.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Lucev FM
Deputy Associate: S. Gough
Date: 20 May 2008
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