Marklew & Marklew

[2007] FamCA 782

FAMILY COURT OF AUSTRALIA

MARKLEW & MARKLEW [2007] FamCA 782

FAMILY LAW - CHILDREN - With whom a child spends time - Application by father to spend time with son in United States

Family Law Act 1975

Applicant: Mr Marklew

Respondent: Mrs Marklew

Independent children’s lawyer: Timothy Mulvany

File number: MLF 10951 of 1993

Date delivered: 4 June 2007

Place delivered: Melbourne

Judgment of: Carter J

Hearing date: 4 June 2007

Representation

Counsel for the applicant: Mr K G McGowan

Solicitor for the applicant: Kelly & Associates, Family Lawyers

Counsel for the respondent: Mr O N Scoullar-Greig

Solicitor for the respondent: Robinson Gill

Independent children’s lawyer counsel: Ms M L Smallwood

Independent children’s lawyer solicitor: T J Mulvany & Co

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 10951 of 1993

MR MARKLEW

Applicant

and

MRS MARKLEW

Respondent

REASONS FOR JUDGMENT

1. The matter which is in dispute at this stage of the proceedings which must now be adjourned concerns the question of when G, who is the only child now under the age of 18 years, should spend time in the United States with his father.

2. It is common ground that there will be a report obtained in Oklahoma by some suitably qualified person and the costs will be shared equally between the child's parents.  The Independent Children's Lawyer recommends that there be some time spent prior to the interviews taking place and proposes that that be for a period of, say, two weeks.

3. The husband agrees with that proposition.  The wife opposes it, only in the sense of when the time should be spent in the United States.  It was said on her behalf that it should be after the interview is concluded.  The reasons for that were said to be, firstly, the possibility that the child might get upset and I think more substantially, so far as the wife's feelings are concerned, that the child might feel intimidated in the two-week period and not accurately, as a consequence, I assume, convey his true feelings to the interviewer who will be a social scientist of some sort.

4. The question of the child being upset is one which is hoped will not occur but if he is going to be upset by spending time with his father, he is just as likely to be upset after the interview has been conducted as he may be before the interview is conducted.

5. So far as being intimidated by his father is concerned, that may be a possibility but I think in the end result, the matter has to be left to the good sense and expertise of the interviewer.  I would be astonished if the child were not to be interviewed on his own and it seems to me to be more than likely that the structure of the interviews would be that the child would be seen not just alone but with each of his respective parents.

6. I make it clear that I am not suggesting for one moment that the child would be overawed or intimidated by his father, but it is, as most things are, a possibility.  Equally well, as has been submitted on behalf of the Independent Children’s Lawyer, there is a possibility that the child is being influenced by his mother and perhaps even alienated.  That is put really as a possibility and I put it no higher than that either.  But given the change in the child's reported attitudes to spending time with his father, it is not a possibility which is out of the question.

7. Given that the child lives with his mother in the United States and will not be spending face-to-face time with his father in the intervening period of time, it would be sensible in my view for the continuum, as it were, of that situation to be interrupted by a short - in the sense of a two-week period – of time to be spent with his father prior to the interview.  It would enable him to renew his acquaintanceship with his father, perhaps to rethink his position, I do not know, but it certainly would let him be able to carry out what I would describe as a reality check.  I think it is the best result for the child in all the circumstances.

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

Associate:     

Date:              3 August 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as MARKLEW & MARKLEW