McDougall & Anor & Hoskings

[2013] FamCA 55

FAMILY COURT OF AUSTRALIA

MCDOUGALL AND ANOR & HOSKINGS	[2013] FamCA 55
FAMILY LAW - CHILDREN – interim orders – with whom a child lives – where the father alleges that the welfare of the child is endangered in the care of the mother – where the child has expressed a desire to live with the father – where the father has made appropriate arrangements for the child to continue his schooling – best interests – orders for the child to live with the father pending trial.

Family Law Act 1975 (Cth).

APPLICANTS: Mr McDougall and Ms Madison

RESPONDENT: Ms Hoskings

FILE NUMBER: DNC 11 of 2013

DATE DELIVERED: 24 January 2013

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

JUDGMENT OF: Dawe J

HEARING DATE: 24 January 2013

REPRESENTATION

COUNSEL FOR THE APPLICANTS: N/A

SOLICITOR FOR THE APPLICANTS: In person

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: In person

Orders

IT IS ORDERED DURING THE PERIOD OF THE ADJOURNMENT NOTWITHSTANDING THE ORDERS IN PLACE FROM THE NEW ZEALAND COURT THAT

1. The father have parental responsibility for the child E born on … January 2000 and that the child reside with the applicants.

1. Further consideration is adjourned on an interim basis to Wednesday 10 April 2013 at 9.15 am before the Honourable Justice Dawe sitting in the Darwin Registry.

1. The applicants to file and serve any further affidavit material PROVIDED THAT the same is filed and served by 4.00 pm on 22 February 2013.

1. The mother is directed to file and serve any answering documents upon which she intends to rely by 4.00 pm on 22 March 2013.

1. The applicants are restrained and an injunction is granted restraining them from removing the child E from outside the Darwin area UPON NOTING the applicants have been advised to file and serve any notice of change of address within seven [7] days of any such change.

1. Pursuant to section 62G(2) of the Family Law Act 1975 as amended a family consultant provide to the Court a report on such matters as are relevant to these proceedings in respect of the care, welfare, development and wishes of the child E born on … January 2000 and that such report be released to the Court and the parties by 28 March 2013.

1. The mother is given liberty to apply on short notice prior to the adjourned date upon filing the appropriate application and supporting affidavit, such application to be heard by telephone link between Adelaide Registry and the Darwin Registry.

IT IS NOTED that publication of this judgment by this Court under the pseudonym McDougall and Anor & Hoskings 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 DARWIN

FILE NUMBER: DNC 11 of 2013

Mr McDougall and Ms Madison

Applicants

And

Ms Hoskings

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is the application made by the father and his current partner in relation to the child E, (“the child”) who was born in January 2000.  He is therefore now aged 13.  The father and his partner are unrepresented and have filed documents including the Notice of Child Abuse and documents in relation to the non-filing of the Dispute Resolution Certificate.  I also have the Affidavits of the father and his current partner.  It appears from the Affidavit of Service that the mother, who resides in New Zealand, was served with the documents only on 22 January 2013.  Bearing in mind the short time between the filing and the listing of the matter there is no criticism of either the applicants nor the respondent for there to be no responding documents by the mother on file yet.

2. I have taken into account the affidavit material and specifically the material which relates to the current circumstances of the child, who has come from New Zealand to Darwin to stay with his father for the school holidays.  Both the Affidavit of the father and his current partner set out the arrangements that were in place for the child and their concerns about his welfare. 

3. It is necessary for me, as the Family Law Act 1975 (Cth) (‘the Act’) provisions provide, to consider the child’s best interests as the paramount consideration,. Taking into account what are currently the allegations of the father and his current partner concerning the welfare of the child in the care of his mother and taking into account what appears to be the clear indication of the child’s wishes and the basis for those wishes, I am satisfied that on an interim basis it is in the best interests of the child for an order to be made providing for him to reside with the applicants and for the father to have parental responsibility for the child during the adjournment.

4. I will make provision for the mother to have liberty to apply at short notice on filing an appropriate Response and Affidavit material but will otherwise adjourn the matter to my next sittings in the Darwin Registry which is in April of this year. 

5. The specific concern that I had concerning the appropriate arrangements for the child’s schooling have been overcome by the receipt of the undated letter from the school principal of M School, addressed to the child thanking him for choosing to enrol at M School.

6. It would appear that the applicants have made appropriate arrangements for the child to continue with his schooling and other arrangements for his welfare.  Therefore, on an interim basis only, and during the period of the adjournment, and notwithstanding the order which appear to be in place from the New Zealand court, I make an order.

7. I am not able to give legal advice, however I strongly recommend that you seek at least some legal advice from a Legal Aid centre or a private solicitor as soon as possible.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 24 January 2013.

Associate: 

Date:  12 February 2013