Makeva and Chadli (No. 2)

[2012] FamCA 363

FAMILY COURT OF AUSTRALIA

MAKEVA & CHADLI (NO. 2) [2012] FamCA 363

FAMILY LAW – CHILDREN – Interim parenting order – school holidays – case management.

APPLICANT: Ms Makeva

RESPONDENT: Mr Chadli

INDEPENDENT CHILDREN’S LAWYER: Ms S Wunderlich

FILE NUMBER: MLC 2442 of 2008

DATE DELIVERED: 29 March 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 29 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Brookes

SOLICITOR FOR THE APPLICANT: Wightons Lawyers

COUNSEL FOR THE RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Whitchurch

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Agricola Wunderlich & Associates

Orders

IT IS ORDERED THAT:

1.The Orders made 7th November 2011 remain in full force and effect.

2.That the children K born … April 1997, L born … April 1999, D born … November 2001 and A born … May 2003 spend time and communicate with the Wife as follows:

For the first week of the school term holidays from 5.00 pm on the first Saturday until 5.00 pm on the mid Saturday to coincide with holiday time the child R born … May 2005 is in the care of the Wife or other such times nominated by the Director of B Contact Service.

3.That the child R born … May 2005 spend time and communicate with the Husband as follows:

For the second week of the school term holidays from 5.00 pm on the mid Saturday of the holidays until 5.00 pm on the next Saturday to coincide with the holiday time the other four children are in the care of the Husband.

4.For the purpose of paragraph 2, changeover is to be at B Contact Service at the commencement of and at the conclusion of time spent.

5.For the purpose of paragraph 3, changeover is to be at B Contact Service at the commencement and at the W Police Station at the conclusion of time spent.

6.I reserve to the father liberty to apply on short notice to vary or set aside these orders or as he may be advised.

7.I reserve liberty to the parties to apply generally.

8.This matter be listed for mention in court before me on Wednesday 18 April 2012 at 10.00 am for the purpose of making directions for trial.

9.All documents produced in compliance with a subpoenae be released to all parties for inspection and for photocopying by the parties save for any documents produced by the Department of Human Services which may only be photocopied by the independent children’s lawyer.

10.Pursuant to Sections 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Makeva & Chadli (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2442 of 2008

Ms Makeva

Applicant

And

Mr Chadli

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me today for, amongst other things, a determination of any outstanding applications in relation to where the five children of the marriage ought spend the upcoming school vacation, which is to commence next Monday, 2 April 2012.  The five children are K Chadli born in April 1997, L Chadli born in April 1999, D Chadli born in November 2001, A Chadli born in May 2003 and R Chadli born … May 2005.  Background is helpfully set out in the decision of Hughes FM[1] delivered on 7 November 2011 and my reasons of 24 February 2012[2].

   [1]          No case neutral citation yet available

   [2]          [2012] Fam CA229

2. I adjourned the proceedings on 24 February 2012 so that each party could file what evidence he/she relied upon in relation to school holiday time to be spent.

3. Today, Ms Brookes appears on behalf of the mother, who attends court.  Mr Whitchurch appears for the independent children’s lawyer.  There is no appearance by, or on behalf of, the father.  He was called at the door of the court at 3.00 pm, and there was no answer to the call.  The matter was listed at 3.00 pm.  There are recognised Dinka interpreters at court for the father and the mother, but of course only Ms Y, who has been assigned to the mother, has a task today because the father is not here.

4. On 24 February 2012, I made various other orders.  One of them was for a parent and children’s issues assessment to be undertaken with assessments scheduled for 1 March.  That assessment was to be released by 15 March 2012.  In fact, it was not released until 20 March 2012 or thereabouts.  In view of the very limited time that the parties would have to read and digest the assessment, the matter was adjourned by agreement to today.  In that respect, I note that on 19 March 2012 a letter was sent by post and by email by my associate, notifying 3 pm today as the further date for the hearing.  It was sent by certified or registered mail, and the receipt numbers are with the correspondence on the Court file.

5. On 19 March 2012 at approximately 12.45 pm, the independent children’s lawyer confirmed in writing to my associate that she had spoken to the father and let him know of the new hearing date, which is today.  Further correspondence on the court file evidences that on 21 March 2012 the children’s and parent’s issues assessment was sent by pre-paid post and by email to the parties, and to the independent children’s lawyer.

6. I am satisfied that the father knows that the matter is listed today.

7. On 24 February 2012 I also extended the time in which the father could file his evidence and amended applications to 1 March 2012.  The father has failed or neglected to comply.  The father has not filed any evidence in these proceedings since before the matter was transferred to this Court by Hughes FM because, in part, the father’s case was not prepared and he wanted to retain legal representation.  He has filed no material and no solicitor appears or represents him..  On 24 February 2012, I also made the following notation:-

   “that, in the event that a party fails to attend a hearing or the family consultant’s assessment or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.”

8. Unfortunately, and particularly given the extra time afforded to the parties, the practitioners for the mother have not taken her through the parent and children’s issues assessment.  That is a significant oversight on their part.  At the last hearing, the mother made oral application for orders entitling all five children to spend half the upcoming school terms holidays with her.  The father’s response was that he believed orders had been made in those terms, but that they were not consistent with the best interests of the children because the mother’s household was not adequate to the needs of the children.  I am satisfied, based on our discussions at the last hearing that the father is in no doubt that the mother intended to apply for one half of the school holidays, with all five children in her care. 

9. I ordered that any party wanting to file and serve an application about the forthcoming school holidays had to do so by 9 March 2012.  Neither did.  Counsel for the mother says that she is instructed that on 8 March 2012 an unsealed copy of the mother’s application and an affidavit were sent to the father and the independent children’s lawyer, and that sealed-copy documents were sent on 13 March 2012.  The independent children’s lawyer confirms that she received the application and affidavit in support.  There’s no formal proof of service, but I am prepared to assume, for today’s hearing, that service has been effected on the addresses which the father gave the court after the last hearing.  In case I am wrong, I will also be reserving liberty to the father to make urgent application to vary or set aside this order, or as he may be advised.

10. Today the mother seeks to proceed with her application in relation to the forthcoming school holidays.  She is entirely supported in that respect by the independent children’s lawyer. 

11. The parenting issues assessment, dated 20 March 2012, does not specifically address school holiday time.  It makes clear, on the last page, that the children should have an ample opportunity to spend as much time together as possible, but it says that really any final recommendations must await further evidence.  The children and parent’s issues assessment does not, however, contain any concerns about the mother’s care of the children, such that the time she now seeks is contraindicated.  Furthermore, the independent children’s lawyer supports the mother’s application and, through her counsel, says she knows of no evidence or reason why the mother should not have the orders that she seeks in relation to the children, because they are consistent with the best interests of the children.

12. As with any parenting order, there is a legislative pathway for me to follow.  However, this is a court of private law and when the father does not bother to be before the court to oppose any application, I can be satisfied that he does not have anything to contribute.  Nonetheless, in determining the application about the upcoming school holidays, I have to have regard to the best interests of the children as the paramount consideration.  That does not mean it is the only consideration; it is the paramount consideration.

13. In determining what is in the best interests of the children, there is a two-pronged inquiry to be made.  First of all, whether it is to the benefit of the children, or in their best interests, to have a meaningful relationship with each of their parents; secondly, what is required to keep the children safe from harm of a physical or emotional nature or abuse.  There are additional considerations to which I have regard as well. 

14. Not all are relevant but those which are inform my assessment of the primary considerations.  On the evidence which is before me, including that of the family consultant, I am satisfied that the orders sought by the mother are not contra-indicated.

15. It is a fairly complex case.  The older children express views which are negative of the mother, but there is clearly evidence before the court which casts some doubt on whether those views emanate from their own personal experience and belief, or from the father’s influence. 

16. Insofar as I take into account the change in circumstances for the children, I note that during the last school holidays all five children spent time in the care of the mother for two weeks. 

17. I am satisfied that the orders sought by the mother are in the best interests of the children.

18. I will reserve to the father liberty to apply to vary or set aside the orders on short notice to the other side, with absent such an application being before the court and the orders being varied or discharged pursuant to it.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 29 March 2012.

Associate: 

Date:  17 April 2012