Martin and Arnold (No. 2)

[2008] FamCA 573

FAMILY COURT OF AUSTRALIA

MARTIN & ARNOLD (NO. 2) [2008] FamCA 573

FAMILY LAW – CHILDREN – addendum reasons for judgment – how and when children should travel to NSW to live with the mother – when children are to commence spending time with the father

Family Law Act 1975 (Cth)

APPLICANT: Ms Martin

RESPONDENT: Mr Arnold

FILE NUMBER: ADF 2897 of 2002

DATE DELIVERED: 30 May 2008

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 30 May 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Steele

SOLICITOR FOR THE APPLICANT: Eleanor Murphy & Company

COUNSEL FOR THE RESPONDENT: Ms Goff

SOLICITOR FOR THE RESPONDENT: RJ Cole & Partners

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Reynolds

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: SRG Lawyers

Orders

1. That the children V born … October 1995 and S born … June 1999 be delivered by the father to the mother at the Adelaide Airport at a time to be agreed on Tuesday 24 June 2008.

2. That paragraph 3 of the order made on 16 May 2008 be varied to provide that the time that the children P, V and S spend with the father only commence after the conclusion of the July 2008 New South Wales school holidays.

3. That all applications be dismissed and removed from the active pending cases list.

4. That pursuant to Section 62B and Section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact Sheet.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 2897 of 2002

MS MARTIN

Applicant

And

MR ARNOLD

Respondent

ADDENDUM REASONS FOR JUDGMENT

1. This matter has come back before me on the issue of how the children should travel to New South Wales in order to implement my order of 16 May 2008, which provided for the two children V and S to move to New South Wales to live with their mother.

2. I have received written submissions from both parties.  I have heard further submissions today.  I have had the valuable input of the Independent Children’s Lawyer and, in my view, there are factors which favour both parties in terms of their respective proposals.  I am mindful that my decision is that the children should move as soon as practicable to live with their mother in New South Wales.  I am also mindful on the other hand that we are two‑thirds of the way through a school term.  The children are attending school in South Australia, and they are obviously engaged in activities.  They have friends and the like, and it is not as simple as uprooting them from that circumstance. 

3. Thus I am prepared to allow a further period of time before the children move to New South Wales, and a convenient time would seem to be immediately following S’s birthday in the last week of June.  That allows a two‑week period before the end of term, both in New South Wales and South Australia, and it would then allow, from the mother's point of view, appropriate arrangements to be put in place for the children to be interviewed and the like, as would be necessary, for the purposes of them being enrolled in appropriate schools in New South Wales. 

4. I do not consider that taking them out of school two weeks before the end of the term is necessarily disruptive, bearing in mind of course, as Mr Steele has reminded me - and I accept his submission entirely - the effect of my decision is that these children should not remain living with their father and should move to live with their mother.  Equally, though, I have provided in my order for the children to spend time with the father on a regular and ongoing basis, and thus it is not a case of the children going over to New South Wales and then not seeing their father again. 

5. I consider that it is in the best interests of the children to try and balance these circumstances. 

6. In relation to how the children travel, the mother proposes that she fly to Adelaide, collect the children, and then return to New South Wales.  That seems to be an appropriate method of transport, and it seems to be agreed that the handover can take place at the airport.  The children will be presented there by the father, with their belongings or as much as can be packed for them, and the mother will then take them back to New South Wales.

7. If there are any belongings of the children which cannot be transported in that way, then I would anticipate - but obviously I am not going to make any order about it - that the father would take them with him when he next travels to New South Wales to spend time with the children.

8. Next, my order of course provides for the children to spend time with their father and, strictly speaking, he would have been entitled to spend time with them during the July school holidays.  However, given that I am allowing the children to remain for another three weeks approximately in Adelaide, it is appropriate for the children to be given some time to settle down in Sydney before the father travels to Sydney to see them.  Thus I am going to make an appropriate order which will provide that the father is not able to commence his time spent with the children until after the conclusion of the forthcoming school holidays.

I certify that the preceding 8 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 30 May 2008.

Associate