NOELLE & FOURNIER

[2011] FamCA 312

FAMILY COURT OF AUSTRALIA

NOELLE & FOURNIER [2011] FamCA 312

FAMILY LAW – CHILDREN – interim application – where the mother seeks variation of final orders made by consent – where the exact whereabouts of the father are unknown – where there has been no confirmation of personal service of documents on the father – best interests – orders that the consideration of the matter be postponed until further information in relation to the children becomes available

FAMILY LAW PRACTICE & PROCEDURE – orders for the reappointment of the Independent Children’s Lawyer – orders requesting the intervention of the Minister for Families and Communities pursuant to s 91B

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286
Marvel & Marvel (No. 2) (2010) 240 FLR 367
MRR & GR (2010) 263 ALR 368

APPLICANT: Ms Noelle

RESPONDENT: Mr Fournier

FILE NUMBER: MLC 11383 of 2007

DATE DELIVERED: 20 April 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 20 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: IN PERSON

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: IN PERSON

Orders

UPON NOTING the consideration of the further variations to the orders as sought by the mother needs to be postponed until such time as further information is available in relation to the children.

IT IS ORDERED THAT

1. During the period of the adjournment the orders of the Court are suspended so far as they relate to the child S born on … April 1996 and PROVIDE THAT during the period of the adjournment the child S live with the mother.

1. The matter is adjourned to Wednesday 25 May 2011 at 9.15 am before the Honourable Justice Dawe.

1. The mother provide copies of the Initiating Application and affidavit material which has been filed since the Consent Minutes of 8 March 2011 by sending them to any further address for the father which becomes known to the mother by registered post immediately.

1. Any school previously attended by S provide the mother with all necessary information to ensure that the child is able to re-commence school as soon as possible.

1. Pursuant to Section 68L of the Family Law Act 1975 as amended THAT the children S born on the … April 1996 and T born on the … June 1999 be independently represented and that such representation be arranged by the Legal Service Commission of South Australia AND that to expedite the appointment of the Independent Children’s Lawyer within seven (7) days of the date hereof the mother do cause to be furnished to the said Commission a copy of all documents filed since the Consent Order of 8 March 2011 and UPON NOTING the re-appointment of Ms Rebecca Reed be considered as a matter of urgency.

1. Pursuant to Section 91B of the Family Law Act 1975 as amended THAT the Court requests the intervention of the Minister for Families and Communities – Families SA in these proceedings.

1. The Department for Families and Communities – Families SA are requested to prepare a report in relation to the welfare of both children on the basis that the Court seeks the assistance of Families SA to provide such report in relation to the information that is available to them concerning the welfare of the children and available to the appropriate authorities in Western Australia and Victoria and that such report be filed at this Court by no later than 4.00 pm on 23 May 2011 UPON NOTING that in the event that Families SA intend to rely / refer to any report prepared by Child Protection Services (“CPS”) that they do also at that time provide a copy of such CPS Report and that a copy of the report(s) be provided forthwith to each of the parties and the Independent Children’s Lawyer.

IT IS FURTHER ORDERED IN CHAMBERS THAT

1. The Court provide Families SA with copies of the affidavits of the mother filed since 8 March 2011.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11383 of 2007

Ms Noelle

Applicant

And

Mr Fournier

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. In this matter the Court has received an initiating application filed by the mother on 11 April 2011 and two affidavits dealing with the issues concerning the children.  It appears from the Affidavit of Service that the documents were served at the father’s last known address in South Australia and received by his present wife.  However, there is no proof of personal service of the documents upon the father himself.

2. Taking into account the issues which relate to the best interests and welfare of the two children of the parties, I propose, notwithstanding the difficulties in relation to service, to deal with the matter on a short-term basis this morning.

3. The material before the Court indicates that there has been litigation about the children over a period of years.  In fact, there were orders made after a hearing some time ago by Justice Bennett on 23 August 2007 and 18 October 2007.  Subsequently, further litigation resulted in a Consent Order being made on 8 March 2011 which provided for both children to live with the father and spend frequent time with the mother.  At the time those orders were made the father and the children were residing in South Australia and the mother was residing in Melbourne. 

4. The children (the subject to this application) are S who was born in April 1996 and T who was born in June 1999.  The affidavit material of the mother, which was recently filed, indicates that S left the home of the father in early April and travelled to Melbourne on her own.  The affidavit suggests that the mother believes that the other child T also wished to travel to Melbourne but was prevented from doing so.  The affidavit material now on the file also suggests that the father has now moved to C Town in Western Australia and has subsequently taken the child T from Adelaide to C Town. 

5. The material is, of course, uncontested at this stage because of the issues concerning the possible service and notice of the documents upon the father.  However, in relation to the recent material, it appears, also, that T was due to spend the April school holidays or part thereof with the mother in Melbourne.  Tickets had been purchased but the father failed to take her to the Adelaide airport in time to catch the flight to Melbourne. 

6. The Court has had the benefit of oral evidence from Ms B this morning.  She is a person who is referred to in the affidavit material of the mother and who has been assisting the father and his family in caring for the children. 

7. It is her belief, from information provided to her by the father, that, indeed, the father is in C Town and has the child T with him in C Town. 

8. The orders that were made on 8 March 2011 provided specifically for detailed arrangements for the mother to spend time with the children and specific injunctions in relation to numerous matters, including:

   That the parties shall keep the other informed in writing of their residential address and shall provide the other with no less than 21 days written notice of any change in their residential address.

1. Part of the order that was made by consent in March this year states:

   That the party shall keep the other informed in writing of their contact telephone number and shall notify the other in writing of any change to their contact telephone numbers as soon as is practicable after such change.

1. Specific details are provided in that order for the arrangements in relation to spending time with and communicating with the children. 

2. The appointment of the Independent Children's Lawyer was discharged by that Consent Order.  It appears appropriate that there be an order renewing the appointment of the Independent Children's Lawyer as a matter of some urgency. 

3. In relation to the issues that have been raised by the mother in her affidavit, it is also appropriate that the Court request the Minister to intervene in these proceedings and to provide the Court with a report in relation to the welfare of both children.  The Court seeks the assistance of Families SA to provide such report in relation to information that is available to them and to the appropriate authorities in both Western Australia and Victoria concerning the welfare of children.

4. The provisions of the Family Law Act1975 (Cth) (“the Act”) which relate to determinations of the best interests of the children are complex.

5. In particular, the provisions of section 65DAA and the decision of the High Court in the matter of MRR &GR(2010) 263 ALR 368 the Full Court authorities of Goode & Goode (2006) FLC 93-286 and Marvel & Marvel(No 2) (2010) 240 FLR 367 are such that the individual provisions of the Act need to be taken into account in quite detail.

6. However, in these circumstances I am satisfied that on this interim application it is not necessary to consider all of the matters in section 65DAA as the exception in relation to interim proceedings clearly applies.  There is limited amount of information before the Court and the Court does not have any participation from one of the parties.  The main concern is the welfare and whereabouts of one of the children. 

7. I therefore propose during the period of the adjournment, to suspend the orders of the Court so far as they relate to the child S and provide that during the period of the adjournment the child S reside with the mother.  The consideration of the further variations to the orders as sought by the mother needs to be left until such time as further information is available in relation to the children. 

8. The matter is adjourned to 25 May at 9.15.  If an address becomes available to you in C Town, Ms Noelle, then I order that you provide copies of the application and affidavit material which has been filed since the Consent Order of March 2011 by sending them by registered post immediately to any further address for the father which becomes known to you.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 20 April 2011. 

Associate: 

Date:  9 May 2011