Noelle and Fournier (No 2)

[2011] FamCA 394

FAMILY COURT OF AUSTRALIA

NOELLE & FOURNIER (NO 2) [2011] FamCA 394

FAMILY LAW – PRACTICE AND PROCEDURE – where the mother seeks that the proceedings be transferred back to the Melbourne Registry – where the mother resides in Melbourne and the father has relocated to Western Australia – consideration of the background of the matter and issues to be determined – satisfied that is it appropriate to transfer the proceedings.

FAMILY LAW – CHILDREN – where the mother seeks orders in relation to the children – where the father seeks an adjournment alleging that he has not received the mother’s documents – best interests – where it was held inappropriate to make orders when the father has not received all the documents and where further material is required – held that the current arrangements for the children should remain unchanged.

Family Law Act 1975 (Cth) s 60CC

Goode & Goode (2006) FLC 93-286
Marvel & Marvel (No. 2) (2010) 240 FLR 367

APPLICANT: Ms Noelle

RESPONDENT: Mr Fournier

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 11383 of 2007

DATE DELIVERED: 25 May 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 25 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Dibden

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ann Josephson

Orders

1. The Initiating Application filed by the mother on 11 April 2011 and all proceedings are transferred to the Melbourne Registry of the Family Court of Australia to be relisted for interim hearing at a date as early as possible such date to be advised to the parties in due course by correspondence to their address for service.

1. During the period of the adjournment the orders of the Court are suspended so far as they relate to the child S and provide that during the period of the adjournment the child S live with the mother.

1. During the period of the adjournment the orders of 8 March 2011 are continued as they otherwise apply to the child T.

1. The child T spend time with the mother in Melbourne with the father to forthwith obtain and pay for return air travel and make all necessary arrangements to ensure that T has return air-tickets such that she arrives in Melbourne to be collected by the mother at the Melbourne Airport on afternoon/evening on Friday 10 June 2011 and the mother is to make arrangements to ensure that T be returned to the Melbourne Airport in the afternoon of Monday 13 June 2011, such arrangements to be in accordance with the particulars of the air-tickets and copy of the travel arrangements to be forwarded by the father to the mother no later than Tuesday 7 June 2011 to the mother’s address for service at D Street, Suburb E, in the State of Victoria  and a copy to the Independent Children’s Lawyer.

1. The father by 4.00 pm on 10 June 2011 is to file and serve an Address for Service and any Response and Affidavit material upon which he seeks to rely by filing the same in the Adelaide Registry of the Family Court of Australia and the Adelaide Registry to forward the same in due course to the Melbourne Registry of the Family Court of Australia when the file is transferred

1. The Court requests that the Independent Children’s Lawyer’s appointment is also transferred to the Melbourne Registry of the Family Court of Australia and arrangements to be made for suitable appointment through the Legal Aid authorities in Victoria.

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

EX-TEMPORE REASONS FOR JUDGMENT

1. This is a matter which was originally in the Melbourne Registry and subsequently transferred to the Adelaide Registry.  At the time the matter was transferred to the Adelaide Registry, the father and the children were residing in South Australia.  The matter came on and was dealt with in this Registry. 

2. The mother resides in Melbourne, Victoria.  The father has now moved to C Town in Western Australia.  One of the children, the subject of the proceedings, S, who was born in 1996 and is, therefore, 15 is now residing with the mother.  The other child, T (who was born in 1999 and is, therefore, aged 11, nearly 12) is apparently resident with the father in C Town.

3. The mother is asking for the proceedings to be transferred back to the Melbourne Registry.  That is supported by the Independent Children’s Lawyer’s counsel here today and supported by the father.  In view of the background to the matter and the issues to be determined, I am satisfied that it is appropriate to transfer the proceedings back to the Melbourne Registry. 

4. I have also heard from the Independent Children’s Lawyer’s counsel, who suggests that consideration be given to having this matter dealt with urgently and consideration be given to it being included in the Magellan list.  I will ask that the order transferring the matter to the Melbourne Registry also indicate that it is requested that the matter be considered for urgent management.  The matter should also be considered for inclusion in the Magellan List.

5. The father asks for an adjournment of the proceedings this morning, alleging that he has not received the appropriate documents.  That is difficult to ascertain.  The affidavit material which is on the file indicates that his present wife was served with the first set of documents by a process server acting on behalf of the mother.  The further affidavit of the mother indicates that she has also forwarded documents to the father for which a receipt from the C Town Post Office has been given.

6. Nevertheless, it appears that it is inappropriate for me to make final orders or any significant interim orders this morning, taking into account that the father has not yet received the Families SA report dated 23 May 2011 (some eight pages which has been handed to the mother and counsel for the Independent Children’s Lawyer, this morning).  That report raises significant matters.  Bearing in mind the significant matters in that report and in particular the ages of the children and the separation of the siblings it is important that further material be placed on file.  Urgent consideration should be given to a Family Report being prepared by way of family assessment including independent interviews with each of the parties and independent interviews with each of the children.  That request will also be noted in the transfer of the matter to the Melbourne Registry.

7. The orders that were made by consent by Registrar Paxton on 8 March 2011 provided for both children to spend time and communicate with the mother, including for the first week of the July end of term school holiday period, commencing at 12 noon on the first Saturday of that school term holiday and concluding at 12 noon on the second Sunday of that school term holiday.  Then there were other orders for the children to spend time with the mother in Melbourne for one weekend in each school term and were quite specific in relation to dates.

8. I am proposing to transfer the matter to Melbourne.  On the basis that the holiday time for the April school holidays did not take place, during the period of the adjournment the orders that I am proposing to make are to suspend the orders so far as it relates to the eldest child S and to provide that during the period of the adjournment S reside with the mother.  During the period of the adjournment I am continuing the orders of 8 March 2011 as they otherwise apply to the child T and specifically ordering that T spend time with the mother in Melbourne.

9. The father is to forthwith make all necessary arrangements to ensure that T has return air tickets such that she arrives in Melbourne to be collected by the mother at the Melbourne airport on the afternoon/evening of Friday, 10 June and the mother is to make arrangements to ensure that T is returned to the Melbourne airport in the afternoon of Monday, 13 June.  Such arrangements to be in accordance with the particulars of the tickets and copy of the travel arrangements to be forwarded by the father to the mother no later than Tuesday, 7 June to the mother’s address for service, which is D Street, Suburb E, Victoria, and copy to the Independent Children’s Lawyer.  Then the matter is to be transferred to the Melbourne Registry.

10. The father is to file and serve an Address for Service and any response and affidavit material upon which he seeks to rely, by filing the same in the Adelaide Registry with the Adelaide Registry to forward the same in due course to the Melbourne Registry when the file is transferred.  Such affidavit of service and answering documents to be filed and served by 10 June 2011. 

11. The Court requests that the Independent Children’s Lawyer appointment is also transferred to the Melbourne Registry and arrangements made for suitable appointment through the Legal Aid authorities in Victoria.

12. The Court will also forward to the father at the address he has given as his post office box address, C Town, Western Australia, a copy of the Families SA report of 23 May 2011.

13. I have not made any orders altering the arrangements provided for the children and their current living arrangements, namely that T reside with the father and S reside with the mother, on the basis that I have considered the authorities of Goode & Goode (2006) FLC 93-286 and Marvel & Marvel(No 2) (2010) 240 FLR 367 and the full provisions of section 60CC of the Family Law Act1975 (Cth) which relate to determining what is in the best interests of the children.

14. Currently, there are serious issues to be determined and on the basis of the material before me, I am satisfied that it is on a temporary basis in the best interests of the children that the current arrangements remain and on the basis that T continue to spend time with the mother which will enable her to renew her relationship with her sibling S. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 25 May 2011.

Associate: 

Date:  2 June 2011