Prendergast and Parsons (No. 14)

[2007] FamCA 1263

FAMILY COURT OF AUSTRALIA

PRENDERGAST & PARSONS (NO. 14) [2007] FamCA 1263

FAMILY LAW – CHILDREN – Ruling – Husband’s failure to attend handing down of reserved judgment

Family Law Act 1975 (Cth)

APPLICANT: Mr Prendergast

RESPONDENT: Ms Parsons

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGF 764 of 2004

DATE DELIVERED: 17 October 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

RULING OF: Guest J

HEARING DATE: 17 October 2007

REPRESENTATION

THE APPLICANT: No appearance

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Byrne

SOLICITOR FOR THE RESPONDENT: Berry Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Brewer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Robert Halliday & Associates

Orders

1. That all previous parenting orders with respect to the child born on … February 2000 (“the said child”) be and are hereby discharged.

2. That the said child live with the wife AND THAT the wife do have sole parental responsibility for the said child.

3. That the said child do spend time with and communicate with the husband:

   3.1on each alternate Sunday between the hours of 10.00am and 5.00pm to commence on 28 October 2007 and at such other times as may be agreed between the parties;

   3.2from 3.00pm until 5.00pm on each of Christmas Day, the said child’s birthday, Fathers Day and at such other times as may be agreed upon between the parties.

4. That the husband do collect the said child from and return her to the wife’s residence for the purpose of the orders referred to in paragraph 3 hereof.

5. That the operation of paragraph 3 be suspended during the month of January in each year commencing in 2008.

6. That the wife authorise the proper officer of the school or schools at which the said child attends or might attend from time to time to provide to the husband at his expense (if any) copies of all school reports, school newsletters, order forms for the purchase of school photographs and other school publications ordinarily provided to parents.

7. That the wife as soon as practicable advise the husband of any significant illness or injury suffered by the said child and identify the treating medical/health professionals charged with the care of the said child.

8. That the husband, by himself and his servants or agents be and is hereby restrained:

   8.1from attending at the school or schools to which the said child attends or might attend from time to time, or be within 100 metres of such school; and

   8.2from taking the said child to a medical practitioner save in an emergency and upon forthwith providing notice thereof to the wife.

9. That upon the Independent Children’s Lawyer explaining the nature, effect and impact of these orders to the said child, the Independent Children’s Lawyer be otherwise discharged.

10. That those parts of the husband’s amended Form 1 Application filed on 28 February 2007 and the wife’s amended Form 1A Response filed on 15 January 2007 that seek relief by way of children’s orders be otherwise dismissed and removed from the Active List of Pending Cases.

11. That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

1. That the wife’s costs and those of the Independent Children’s Lawyer be reserved for further submission.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 764 of 2004

MR PRENDERGAST  

Applicant

And

MR PARSONS  

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

RULING

1. In this matter, all of the parties were advised that my reserved judgment would be handed down in the substantive welfare proceedings at 10.00 am this day.  Mr Byrne appears for the wife and Mr Brewer continues to appear for the Independent Children's Lawyer. At 10.00 am this morning, Mr Byrne and Mr Brewer were both present at court. There was no appearance by the husband. With an abundance of caution I stood the matter down.

2. By 10.30 am there was still no appearance by the husband.  I had my court officer then telephone the husband both on his mobile telephone and on his landline. The mobile phone was switched off. The landline rang out with no answer. 

3. I returned to court at 10.40 am and had the husband called by my court officer outside the court.  He failed to respond to the call. I would have hoped that the husband would have been present for the handing down of the reserved judgment in the substantive welfare proceedings as there are other matters to discuss, namely those concerning the property proceedings in its continued hearing.

4. I do not propose to stand the matter down any further.  It would be grossly inconvenient to Mr Byrne and Mr Brewer. I hand down my reasons for judgment in the welfare proceedings. 

I certify that the preceding four (4) paragraphs are a true copy of the Ruling of the Honourable Justice Guest.

Associate

Date:  25 October 2007