Petric and Petric

[2008] FamCA 1

FAMILY COURT OF AUSTRALIA

PETRIC & PETRIC [2008] FamCA 1

FAMILY LAW – CHILDREN – Spend time with – Order made on an urgent basis by way of compromise and the further hearing returned to Benjamin J who is part heard in the proceedings being conducted pursuant to Div 12A of Part VII of the Family Law Act 1975.

Family Law Act 1975 (as amended)

APPLICANT: Mr Petric

RESPONDENT: Mrs Petric

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: HBF 1665 of 2004

DATE DELIVERED: 3 January 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 3 January 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Smith

SOLICITOR FOR THE APPLICANT: PWB Lawyers

COUNSEL FOR THE RESPONDENT: Mr Herd

SOLICITOR FOR THE RESPONDENT: Blissenden Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Kent

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of Tasmania

Orders

1. That the wife do deliver to the husband the children J… born on … May 1999 and A… born on … September 2001 at 4.00 pm this day AND THAT the husband do return the said children to the wife at 5.00 pm on Monday 7 January 2008.

2. That the husband’s Application filed on 28 December 2007 be otherwise adjourned for mention only before the Honourable Justice Benjamin at 10.00 am on 14 January 2008.

3. That all parties’ costs of this day be reserved.

4. That the ex tempore Judgment delivered be transcribed and placed on the Court file.

(5) That pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Guest delivered this day will for all publication and reporting purposes be referred to as Petric & Petric.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: HBF 1665 of 2004

Mr Petric

Applicant

And

Mrs Petric

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. I have before me a Form 2 Application in a Case brought by the father seeking an order that the children, Z, born in March 1998, J, born in May 1999 and A, born in September 2001 be delivered forthwith to him and that he be provided with make‑up time with the said children, pursuant to orders made by Benjamin J on 31 August 2007. 

2. The father sought a further order that in the event that the mother failed to deliver the children in accordance with the orders, a Recovery Order be issued in the usual form pursuant to the provisions of the Family Law Act 1975 (as amended).

3. The father's application is supported with a short and succinct deposition dealing with the issues for consideration. 

4. The matter was brought on before me this morning, but due to pressure of court business it was adjourned to 2.15 this afternoon.  I am hearing the matter from the Melbourne Registry of the Family Court of Australia and Mr Smith of counsel who appears for the Applicant father, Mr Herd of counsel for the Respondent mother and Ms Kent of counsel for the Independent Children's Lawyer, appear in Hobart. 

5. This is an application which is proceeding before Benjamin J pursuant to the provisions of Division 12A of Part VII of the Act. I have read the order of his Honour made 31 August 2007. In particular, the orders provide that the proceedings, which are part‑heard before him, be adjourned to 18 March 2008 or such other time as determined by the court. A telephone number was provided for convenience. Furthermore, his Honour ordered that, until further order, leave be granted to either party to have the matter restored before him on the giving of seven days' notice to the Case Coordinator, the other party and the Independent Children's Lawyer.

6. It is plain that the matter is part-heard before Benjamin J and notwithstanding, it is explicable how it came to be listed before me sitting in Melbourne, for it did have a sense of urgency attached to it and his Honour was not available until 14 January 2008 when he would be returning to the Hobart Registry of the Family Court of Australia. 

7. I had the advantage of sensible discussion with Mr Smith, Mr Herd and Ms Kent and in the result a compromise has been reached, in that it is proposed that the mother will deliver the two younger children to the father at 4 pm this day; he shall spend time with them and return them to the mother at 5 pm on Monday, 7 January 2008. 

8. It appears from the order of Benjamin J that the father was entitled to spend time with the children on a week about basis commencing in the December 2007 summer vacation.  However the mother has failed to provide the three children to him.  In any event, the father has only spent some two sessions, of about 20 minutes each session, with the eldest child, who was born in March 1998.  Otherwise, he has been spending time with the other two children in accordance with the orders made by his Honour. 

9. As I understand the submission of Mr Herd, appearing for the respondent mother, Dr J, a child psychologist, has opined that the orders are not in the best interests of the children and should revert to the orders providing for contact from Thursday until Monday morning when they were attending school.  From what is submitted by Mr Smith however, there appears to be no specific assertion set out in the report of Dr J explaining why that time is acceptable whilst a slightly longer time is unacceptable.  Whilst that appears to be a good point, it is one that will be dealt with by Benjamin J in the fullness of time. 

10. As I said, his Honour is the judge seized with this matter.  He is aware of the factual matrix underpinning the background to it and is in a far better position than I to deal with the issue other than in the manner that I have this day. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  7 January 2008