Noelle and Fournier (No. 2)

[2009] FamCA 334

FAMILY COURT OF AUSTRALIA

NOELLE & FOURNIER (NO. 2) [2009] FamCA 334

FAMILY LAW – CHILDREN – interim proceedings – school holiday time – mother seeks that the children spend time with her in Melbourne during the school holidays – where final orders were made in 2007 – where the previous order for the children to spend regular school holiday time with the mother has been suspended – where there is a difficult relationship between the parties – best interests of the children – order for mother to spend time with the children during the school holidays

Family Law Act 1975 (Cth) s 60CC

Goode and Goode (2006) FLC 93-286

APPLICANT: Ms Noelle

RESPONDENT: Mr Fournier

INDEPENDENT CHILDREN’S LAWYER: Mrs Reed

FILE NUMBER: MLC 11383 of 2007

DATE DELIVERED: 21 April 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 21 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Cocks

SOLICITOR FOR THE APPLICANT: Philip Lineton

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: N/A

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr M.A. Boehm

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Legal Services Commission

Orders

1. The mother spend time with the children S born on the … April 1996 and T born on the … May 1999 from 5.00 pm today with the father to deliver the children to the mother at the Qantas Check-In Counter at the Adelaide Domestic Airport at 5.00 pm today with the mother paying the costs of the airfare between Adelaide and Melbourne and that the mother ensure that the children return to the father by placing the children on the Virgin Blue flight from Melbourne Airport to Adelaide Airport, departing Melbourne at 7.05 pm on Saturday 25 April 2009 on the basis that the mother pay the costs of the airfare with the father to reimburse the mother for one half of the costs of the flight from Melbourne to Adelaide within seven [7] days of the children’s return to Adelaide.

2. IT IS DIRECTED the father file and serve upon the mother’s lawyer and the Independent Children’s Lawyer a Case Outline by 4.00 pm on the 11 May 2009 which includes specific orders by way of final orders he seeks.

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 comes before the Court on the recent interim application by the mother in which she seeks to spend time with the two children of the relationship during the current school holidays.

2. The application in a case filed by the mother on 15 April 2009 seeks orders that the children, S born in April 1996 and T born in May 1999 spend time with her from 5.00 pm today until 6.00 pm on Sunday, 26 April, with the mother to pay for the flights between Adelaide and Melbourne and the father to pay for the flights between Melbourne and Adelaide.  That application was foreshadowed by the mother during the appearance before his Honour Burr J on 15 April 2009.

3. It does not appear, from any affidavit material before the Court that the father was previously on notice that the mother was seeking this specific time.  It should be noted, of course, that the school holidays for South Australia commenced on 9 April this year, being immediately preceding Easter.  Nonetheless the mother was given leave to file the application in a case and supporting affidavit, and the matter was listed, amongst other things, before me this morning.

4. I have heard the submissions of the counsel for the mother, for the father in person and counsel for the Independent Children’s Lawyer, and have taken into account the affidavit material of the mother.

5. This matter should be seen in the context of the history of the matter, which has been before the Court for a number of years; in particular, final orders made by Her Honour Justice Bennett in 2007 which provided for the children to spend regular school holiday time with the mother.  That order in relation to the school holiday time spent with the mother has however been suspended.  Since then various orders have been made for the children to spend time, during the school holidays, with the mother, either by consent or after applications to this Court.

6. It is to be regretted that the relationship between the parents appears to be one of ongoing difficulty and continues to be on in which it appears the mother does not communicate directly with the father concerning the children, and the father continues to have concerns about the mother's attitude towards him and in particular what he alleges to be her inability to desist from indoctrinating the children and attempting to alienate the children from him.

7. Since the fresh set of proceedings has been instituted there have been further documents filed and in particular the further family reports prepared, the most recent of which is one dated 11 August 2008, following upon interviews with the children and the parties in early August 2008.

8. I have taken into account the material in the most recent report, in particular in relation to the observations made in that report by the Family Consultant that the father has consistently presented as being appropriately protective and supportive of the girls.  It is also clear, in that report, that the children wished to continue to spend time with the mother; missed her and loved her.

9. The father has not at any stage denied the wish of the girls to spend time with the mother but has expressed concern about the mother's behaviour towards the children.  In particular he seeks to emphasise the orders which already exist that the mother not denigrate the father in the presence of the children.

10. In matters such as this it is necessary for me to take into account the decision of Goode and Goode (2006) FLC 93-286 and the principles referred to therein, which emphasise that the decision must be made bearing in mind the paramount consideration is the best interests of the children.

11. S was born in April 1996 and her birthday is in the next few days, when she will be 13.  T was born in May 1999 and is therefore nearly 10.

12. The mother says in her affidavit filed on 15 April 2009 that she has not seen the children since early January 2009, that she has had some telephone contact with the children since then but on a limited basis.  The mother says in her affidavit that she is now pregnant and that both children are excited and happy for her in relation to this news.  She proposed in her affidavit that she have an opportunity to spend time with them in the approaching school holidays.

13. The principles which guide the Court are set out in the case of Goode and Goode (supra) and emphasise the need to consider the criteria in relation to parenting orders in Part VII of the Family Law Act 1975 (Cth). In particular section 60CC requires that I take into account the primary considerations which emphasise an ongoing meaningful relationship with each of the children's parents and the need to protect the children from psychological harm.

14. I accept the father expresses genuine concern about the need to protect the children from the disruptive element of what he alleges to be the mother's inappropriate attitude towards the father in the presence of the children.  I also accept that it would benefit the children if they were able to have regular time with both of their parents in a way which would not be psychologically damaging to them or to their relationship with both of their parents.

15. I take into account the factors in relation to the capacity of the parties to provide for the children appropriately and the concern expressed by the father, but it is also of benefit to the children to be allowed to spend time with the mother on the basis that they would have sufficient time to settle back into their home routine before resuming school.  The mother was seeking the return of the children late on Sunday.  That was appropriately opposed by the father due to the concerns that have been expressed in the past about the change from one home to the other.  That was a return time which was far too late for the children.

16. The parties have, during the period of the adjournment, made inquiries about the availability of a return flight.  The mother had previously booked a flight for the children from Adelaide to Melbourne but had not booked any flight to bring them back to Adelaide.  I was concerned that such arrangements needed to be put in place at this late stage.  If there was to be any holiday arrangements it is important to guarantee that both children will be returned to the father on time and on the appropriate flight.  The mother has also agreed to pay the cost of the fares from Adelaide to Melbourne and half of the cost of the fare for the return flight from Melbourne to Adelaide.

17. Weighing all of the factors up, I am of the view that, provided the mother obeys the Court orders in relation to not denigrating the father in the presence of the children or allowing anyone else to do so, that it would be of benefit for the children to spend some time with the mother during the current school holidays.  I do that, notwithstanding that the mother appears to have been unable to take the necessary steps to make those arrangements at a time which would have been much more convenient for both the father, the Court and, more particularly, for the children to know the arrangements for their current school holidays.  Notwithstanding the mother's failure to attend to consider those factors, I believe that the interests of the children are such as to emphasise the benefit for them spending time with the mother if she complies with the existing Court orders.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  4 May 2009