Raganni and Millio

[2008] FamCA 227

FAMILY COURT OF AUSTRALIA

RAGANNI & MILLIO [2008] FamCA 227

FAMILY LAW – CHILDREN – Mother denied Father contact with his 7 year old son and sought adjournment of his application for enforcement – Adjournment refused and orders made for delivery of the child to the Father.

Family Law Act 1975 (Cth) (as amended)

APPLICANT: Mr Raganni

RESPONDENT: Ms Millio

FILE NUMBER: MLC 2592 of 2008

DATE DELIVERED: 31 March 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 31 March 2008

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the Applicant (father) do collect the child … born on … December 2000 from the home of the Respondent (mother) at … at 12 midday on 1 April 2008 AND THAT the Respondent (mother) do deliver the said child to the Applicant (father) at that time.

2. That the Applicant (father) do spend time with the said child from 12 midday on 1 April 2008 until 6 pm on 6 April 2008 when he shall return the child to the Respondent (mother).

3. That the Applicant (father) do forthwith serve upon the Respondent (mother) a sealed copy of the Orders made this day.

4. That all extant applications be dismissed.

IT IS DIRECTED

1. That the ex tempore judgment delivered this day be transcribed and placed on the court file.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2592 of 2008

Mr Raganni

Applicant

And

Ms Millio

Respondent

REASONS FOR JUDGMENT

1. I have before me an Initiating Application brought by the father and filed on 25 March 2008.  The respondent to the application is the mother.  It is not necessary for me to go into the background of the matter, save to say that an order was made by consent on 10 February 2006 by Senior Registrar FitzGibbon, providing for the child of their relationship, who was born in December 2000, to live with the mother who is to have responsibility for his day‑to‑day care, welfare and development.  The learned Senior Registrar further ordered that the mother and father share responsibility for the child's long-term care, welfare and development and then made specific orders for the father to have "contact", as it was then styled, with the said child as follows:

   “4(a)from 7 pm Friday until 6 pm Sunday (or 6 pm Monday if Monday is a public holiday) on each alternate weekend (save during the long summer holiday) commencing 10 February 2006;

   (b)upon the father giving the mother 30 days' notice, for one week in the school term holidays, such week to be immediately following the father's usual weekend contact.”

   Further and other orders then provided for the summer school holidays, Father's Day, the child's birthday, telephone contact and other facilitating orders. 

2. The Initiating Application of the father simply seeks an order for return of the child pursuant to the terms of the parenting orders made on 10 February 2006.  Albeit somewhat vague in form, the intent is well spelled out in an affidavit filed by him on 25 March 2008. 

3. Put simply, the father is seeking school holiday contact with the child pursuant to paragraph 4(b) of the orders to which I have earlier referred.  He refers to the fact that notice was provided to the mother on 9 September 2007 regarding confirmation of school holiday contact pursuant to an attachment, numbered 2, a copy of which is annexed to his affidavit.  The father deposed that he endeavoured to collect the child on Easter Sunday, 23 March 2008 at 6 pm for the seven days' school holiday contact following his "usual weekend contact".  He deposed the mother denied him contact with his son.

4. Accordingly, the father claimed that he attended the Police Station for assistance.  Senior Constable S attempted to make contact with the mother, but without success.  What the father is seeking is an order that the child spend time with him from Friday, 28 March 2008 for seven days pursuant to the original orders and that he would return his son to the mother's house on Sunday, 6 April 2008. 

5. He deposed that he was "hopeful that this matter is treated with urgency", and then sets out the reasons.  They are plainly compelling.  He deposed, for instance, that if he does not see his son, it would mean that they would not have contact with each other for a month and the family holiday plans, there being other children involved, which have been put in place would be in disarray.  He otherwise deposed that the mother had contravened the court orders in the past.  I do not give any weight to that assertion as matters presently stand and only rely on the contents of the affidavit to which I have just referred.

6. Significant in my view is the father's deposition that since the orders were entered into on 10 February 2006, he has seen the child every second weekend and for half of every school holidays, save with the exception of a contravention in April 2006.  The father struck me as a very reasonable and compliant man. 

7. I have before me an affidavit of service and I am satisfied the documents have been served upon the respondent mother.  Furthermore, there is on the court file a letter which appears to be written by the mother to the court dated 26 March 2008, seeking an adjournment for reasons stated by her.  I do not think those reasons are specific enough to warrant an adjournment of this matter because, in my view, urgency is the key note here.  The singular fact that compels me to make the orders that I propose is the fact that since the orders were made on 10 February 2006, save for the times I have referred to earlier in these short remarks, the father has spent time with his son.  If I were to adjourn this matter, the school holidays would be lost. 

8. The principles underlying the objects of the Family Law Act are that, save where it would be contrary to a child's best interests, the child has a right to know and be cared for by both his mother and his father.  He has a right to spend time on a regular basis with, and communicate on a regular basis with, both his mother and his father and other people significant to his care, welfare and development.  An example of that would be of course grandparents or partners.  Furthermore, it is a principle of the Family Law Act that parents jointly share duties and responsibilities concerning the care, welfare and development of their children and that they should agree about future parenting in the future. 

9. For the reasons stated, I propose to make the orders sought.  That the father will lose, through the effluxion of time, a few days will be a matter that has to be borne and there is nothing more I can do about it in the circumstances.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  10 April 2008