Noelle and Fournier

[2008] FamCA 1184

FAMILY COURT OF AUSTRALIA

NOELLE & FOURNIER [2008] FamCA 1184

FAMILY LAW – CHILDREN – application by the mother to attend child’s graduation – injunction in previous order prohibits mother’s attendance – no such conduct evident on mother’s behalf since matter transferred to Adelaide – high level of conflict previously exhibited by mother – parties unable to communicate civilly - child’s best interests served by there not being any opportunity for conflict between parents – application refused

Family Law Act 1975 (Cth)

APPLICANT: Ms Noelle

RESPONDENT: Mr Fournier

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

FILE NUMBER: MLC 11383 of 2007

DATE DELIVERED: 8 December 2008

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE REASONS OF: Burr J

HEARING DATE: 8 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lineton

SOLICITOR FOR THE APPLICANT: Ruth Carter & Associates

FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs Reed

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

Orders

1. That the mother’s Application in a Case filed herein on 25 November 2008 (document 23 on the Family Court file) be refused and dismissed and removed from the pending list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: MLC 11383  of 2007

MS NOELLE

Applicant

And

MR FOURNIER

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I have before me two Applications in a Case filed by the mother, one being on 17 November 2008 and the other on 25 November 2008.  To the parties’ credit they have been able to resolve between themselves the issue as to what time their two children should spend with each of them during the upcoming Christmas school holiday break.  The issue not resolved between them though is as to the mother’s attendance at the child S’s graduation to be held this Thursday, 11 December 2008.

2. The mother’s desire to be in attendance at that graduation ceremony is entirely understandable.  It is an important event in any child’s life and of course there will only ever be one of them in the sense that S will only graduate from her current year of education once in her lifetime.  There will, of course, be an opportunity for both parents to participate later in relation to T’sgraduation events, but this is the only opportunity that the parents would have to participate in those planned for S.

3. The Court is grateful to the Independent Children’s Lawyer for going to the trouble of establishing the true nature of the event and the Court is informed that the graduation ceremony is in the nature of a dinner function to be held at a Function Centre.  During the course of the evening the children will sit with their parents at an allocated table.  Ms Reed informs the Court that the table for S and her accompanying persons has already been designated and that the particular table designated for S’s attendance and participation is full.  She informs me though that the school would make every effort to accommodate the mother’s attendance if the Court ordered it but at a different table.

4. I also have established from the father this morning that he will be accompanied to the event by his present wife and by T.  Thus there will be four of them in attendance at the designated table to enjoy the evening’s events.

5. What prohibits the mother’s attendance presently is an Order made by Bennett J in the Melbourne Registry of the Court on 18 October 2007 and that is an injunction contained in paragraph 5.  Mr Lineton for the mother pointed to the reasons why the Court thought it appropriate to grant that injunction in the first place and pleads that the mother has since that time learnt a good deal in the sense of understanding what impact and effect her conduct at that time and her defiance of Court orders at that time had upon the children.  He puts to me that there has been no such conduct evident on the mother’s part since the matter was transferred to the Adelaide Registry of the Court.  Certainly I, on the occasions that I have been dealing with this matter, have had no difficulty in terms of the mother’s approach to the proceedings and her respect for the Court.  He asks me to trust the mother and permit her to attend this important event in the child’s life.

6. In making my decision I have had regard to the relevant provisions of the Family Law Act 1975, particularly Section 60CA which obliges me to have regard to the children’s best interests as the paramount consideration in making my determination. That obliges me to consider a raft of matters set forth in Section 60CC of the Act. In my view it is not necessary for me to trawl through all of those provisions individually but I certainly have had those provisions in mind when making my determination. For me the principal issue for consideration here is to make the event as pleasant and enjoyable for S as possible. In ordinary circumstances that would entail the attendance of both of her parents. However in my view it is not appropriate to risk there being conflict and poor communication between the parents at such an important event in S’s life. I am sure that S would love her mother to be there and in fact there is some email communication that suggests that S would dearly like her mother to be there. However the level of conflict exhibited in the past by the mother and the inability of the parties to communicate on any civil basis in the past remains a cause for the Court’s concern. There are still matters before the Court for its determination and I have set in place some timelines in order to be able to deal with those matters on a more fulsome basis. However doing the best I can on an interim basis I believe that S’s best interests would be served by there not being any opportunity for conflict between the parents at such an important day or evening in her life.

7. For those reasons, I refuse the mother’s application.

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

Associate: 

Date: