Marshall and Willow

[2009] FamCA 74

FAMILY COURT OF AUSTRALIA

MARSHALL & WILLOW [2009] FamCA 74

FAMILY LAW – CHILDREN – With whom a child lives

APPLICANT: Mr Marshall

RESPONDENT: Ms Willow

FILE NUMBER: MLC 9635 of 2008

DATE DELIVERED: 28 January 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 28 January 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Ms Johnston

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

BY CONSENT:

1. That the Applicant, Mr Marshall, has sole custody of the child, … born …November (“the child”).

2. That the Applicant be responsible for the day to day care of child.

3. The Respondent, Ms Willow, is allowed contact with the child where overnight stays are permitted.

4. The Respondent has contact with the child when agreed upon with the Applicant.

5. That pursuant to Sections 65DA and 62B the particulars of 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 on order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

6. The Orders remain on the Court file.

BY COURT ORDER:

1. There shall be a transcript prepared with Justice Dessau’s brief reasons for judgment this day and it shall be retained on the Court file.

2. Applicant’s solicitor shall ensure that a sealed copy of these orders is forwarded to the Respondent at H Street, B, Victoria.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 9635 of 2008

MR MARSHALL

Applicant

And

MS WILLOW

Respondent

REASONS FOR JUDGMENT

1. The child is seven years old.  When her parents initially separated, she lived with her mother, and spent time with her father.  Since late last year she has been living full‑time with her father.  He brought proceedings, to formalise the arrangement. 

2. The matter came before Registrar Riddiford on 9 January 2009.  There was an affidavit from the father's solicitor setting out that she had spoken with the mother, that she was aware of the proceedings, and was not proposing to be involved.  Registrar Riddiford made arrangements for further service on the mother.  There are service documents that satisfy me that it has occurred.  That was no doubt done by way of an excess of caution, to ensure that the mother could participate in the proceedings if she had the chance to reflect upon it, and if she chose to do so. 

3. The case was adjourned until today for me to potentially make orders on an undefended basis.  I propose doing just that.  I am satisfied on the material that the mother has had ample opportunity to attend. 

4. I accept from the solicitor for the father that she has spoken with the mother, who has repeated that she does not propose attending, and that she has in fact returned to the solicitor signed minutes of orders.  They allow for the child to live with the father, for him to be responsible for her care, and for the mother to have time with her as organised with the father.  The mother has not sought any other involvement or any other orders. 

5. The father's affidavit filed on 4 December 2008 sets out in detail the arrangements for the child and, in the absence of any evidence to the contrary, I am satisfied that the child’s best interests are served by the arrangements that he sets out. I propose making the orders on an unopposed basis.  They are the orders in accordance with the minutes received at the court on 19 January 2009.  The minutes will remain on the court file.  The solicitor for the father will prepare the orders within seven days. 

6. I will perhaps add two things.  First, there be a transcript prepared of my brief reasons for judgment this day and it shall be retained on the court file.  Secondly, the father's solicitor shall ensure that a sealed copy of these orders is forwarded to the mother at H Street, B, Victoria.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau 

Associate: 

Date:  28 January 2009