MOTT & MOTT

[2012] FamCA 834

FAMILY COURT OF AUSTRALIA

MOTT & MOTT [2012] FamCA 834

FAMILY LAW – PRACTICE AND PROCEDURE – where the mother seeks that final orders be made at the interim hearing – where the Court held that is was not appropriate for final orders to be made without warning to the father – where it is necessary to ensure that the father has been afforded procedural fairness – matter adjourned and orders made for the father to file and serve his responding documents. 

FAMILY LAW – CHILDREN – consideration of the appropriate parenting orders to be made pending the determination of the matter – where the parties have a difficult relationship – best interests – orders that the children live with the mother and that she have sole parental responsibility.

Family Law Act 1975 (Cth)

APPLICANT: Ms Mott

RESPONDENT: Mr Mott

INDEPENDENT CHILDREN’S LAWYER: Barr Lawyers

FILE NUMBER: SYC 653 of 2011

DATE DELIVERED: 18 September 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 18 September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Gilbert

SOLICITOR FOR THE APPLICANT: Gilbert & Mattner

COUNSEL FOR THE RESPONDENT: Ms Bidstrup

SOLICITOR FOR THE RESPONDENT: Sykes Bidstrup

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Lewis

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Barr Lawyers

Orders

1. Pending conclusion of the final orders application the mother have sole responsibility for the children K and G and the children live with the mother.

1. Within fourteen [14] days the father to file and serve his amended response specifying the particular orders he seeks in relation to the children and if he does not do so the Registrar is directed to list the matter as an undefended hearing in relation to the children’s issues.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mott & Mott 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 ADELAIDE

FILE NUMBER: SYC 653 of 2011

Ms Mott

Applicant

And

Mr Mott

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is a matter which comes on before me, having been listed in relation to an Application in a Case which was filed in August 2012.  The matter comes on today on the listing of interim orders, but I am being asked by the mother’s counsel to make final orders. 

2. In these circumstances, it is not appropriate for final orders to be made on the hearing of an interim application without significant warning having been made.  However the Court notes the material which is on the Court file which suggests that the father was not seeking any significant orders in relation to the children.

3. Counsel for the father appears today saying she has only recently been instructed and that the father has only recently received the Child Responsive Programme memorandum which is dated 13 September 2012.

4. The matters before the Court concern the best interests of the children.  It is quite clear from the Child Responsive Programme memorandum that there have been significant difficulties in the relationship between the parties and the relationship between the father and the children.  The history of the litigation also sets out those ongoing difficulties. 

5. I am not proposing to make final orders today because it is necessary to ensure that the father has procedural fairness, however it is also necessary to ensure that the litigation is concluded in an appropriate way.  The father is therefore to be put on notice that until he complies with orders of this Court and provides the Court and the parties with full particulars of the orders which he is seeking and the basis upon which he is seeking them, the Court is not in a position to take into account what he may, in fact, be asking the Court to do.

6. It is not at all clear (other than he is not prepared to consent to final orders today) what orders he may be seeking.  I have taken into account the Children and Parents Issues Assessment which was carried out very recently.  It refers to some strong indications from both of the children about their attitude towards even spending time with or communicating with the father. 

7. The matter has been listed for directions before a Registrar in the near future.  Counsel for the father indicates that by 25 September 2012 it is anticipated she will have instructions as to the father’s attitude.

8. In order to move the matter along in the appropriate way, I am proposing to make interim orders pending the final determination of the matters that the children live with the mother and that she have sole parental responsibility.  I do that on the basis of the necessary considerations under the Family Law Act1975 (Cth) and in particular take into account the matters raised in the Child Responsive Programme memorandum which makes it clear, as is conceded by the parties, that the mother and father not only do not have any capacity to communicate in a civil fashion concerning the best interests of the children but, indeed, there are significant issues in relation to the possible detriment to the children of any ongoing relationship between the parents.

9. I am therefore satisfied that it is in the best interests of the children for the mother to have sole parental responsibility pending the further determination of the matter.  I also propose that the children live with the mother for similar reasons. 

10. The father is also ordered to file and serve the full particulars of any amended response upon which he seeks to rely in relation to children’s issues within 14 days.  If he does not do so, then a Registrar is directed to list the matter for an undefended hearing in relation to children’s issues.

11. In relation to transferring the matter back to the Federal Magistrates Court, whilst the children’s issues remain outstanding, I propose to leave the matter in the Family Court of Australia.  If it transpires that the children’s matters are dealt with and it is only the financial matters remaining, then the parties can give further consideration to a request to transfer the matter to the Federal Magistrates Court.  

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 18 September 2012.

Associate: 

Date:  2 October 2012