ROGERS & LENARD (No.2)
[2010] FMCAfam 830
•28 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ROGERS & LENARD (No.2) | [2010] FMCAfam 830 |
| FAMILY LAW – Children – parenting orders – Airport Watch List – whether children’s names should be removed from the Airport Watch List – whether the mother should be restrained from seeking medical treatment for the children from medical practitioners in Melbourne – whether an order should be made restraining the mother from going within ten metres of the father’s residence – where Local Court has previously refused to make a family violence order. FAMILY LAW – Property. |
| Family Law Act 1975, s.114 |
| Applicant: | MR ROGERS |
| Respondent: | MS LENARD |
| File Number: | SYC 1585 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 28 July 2010 |
| Date of Last Submission: | 28 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 28 July 2010 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Sweeney |
| Solicitors for the Applicant: | Sweeney Tiggemann |
| Solicitor for the Respondent: | Ms Green |
| Solicitors for the Respondent: | Streeterlaw |
UNTIL FURTHER ORDER
The application to remove the children’s names from the Airport Watch List is refused.
The application to restrain the Respondent Mother from seeking medical treatment for the children [X] born 2003 and [Y] born 2005 from medical practitioners in Melbourne is refused.
The application to restrain the Mother from going within ten (10) metres of the Father’s residence is refused.
The Respondent is to countersign a cheque for $1,000.00 at the ANZ Bank at [R] in the State of New Wales in favour of Aussie Home Loans on account of arrears of mortgage payments by 5:00pm on Friday 30 July 2010.
The Respondent is to countersign a cheque for $8,306.71 at the said ANZ Bank at [R] in favour of Members Equity Bank on account of outstanding mortgage payments within twenty four (24) hours of the Applicant Husband providing to the Respondent’s solicitors a written document evidencing that amount outstanding.
ORDERS
The parties are referred for a Conciliation Conference on 10 August 2010 at 9:30am with a Registrar.
The parties comply with Rule 24.04 by serving on each other copies of the documents listed in that rule no later than 14 days before the date of the conference.
The parties exchange market appraisals or valuations of any asset, the value of which is in dispute, by no later than ten (10) days before the date of the conference.
The solicitors for the parties forward to the Registrar a Conciliation conference Document no later than seven (7) days before the Conference.
The Application is adjourned to Thursday 5 August 2010 at 10:00am for further mention before Federal Magistrate Scarlett in Court 7A, level 7, Lionel Bowen Building, 99 Goulburn Street, Sydney NSW 2000.
IT IS NOTED that publication of this judgment under the pseudonym Rogers & Lenard is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT Sydney |
SYC 1585 of 2010
| MR ROGERS |
Applicant
And
| MS LENARD |
Respondent
REASONS FOR JUDGMENT
There are three interim orders that are sought to be made today. They are contested by the Respondent.
The issues for determination are whether the names of the children should remain on the Airport’s Watch List, also known as the PACE system, where they are currently placed.
The Father seeks that the names should remain. The Mother seeks that they be removed.
The Father seeks an order restraining the Mother from taking the children to see any medical practitioners in Melbourne, and restricting her to consult medical practitioners in Sydney.
The reason for that is the difference of opinion between the parties as to advice that the Mother says has been received about the availability of treatment for the child, [X].
The Father seeks an order restraining the Respondent Mother from going within 10 metres of his current residence. He does so on the basis that he says that there was an apparent break in earlier in the year, and certain items were removed, and he is of the belief that the Mother was behind it, if not actively involved. She denies that.
As I understand it, she claims that she was in fact in Melbourne at the time.
As far as the Airport Watch list is concerned, the children’s names are on the Airport Watch list as a result of an application made by the Father. This matter should be viewed in the light of the orders the Court made back on 9th July 2010, imposing certain restrictions on the Mother, after an interim hearing which arose from a unilateral relocation of the children’s residence from Sydney to Melbourne.
The Mother says she has no intention of removing the children from the jurisdiction permanently. Certainly not any intention of taking the children to Italy, but may wish to take them on a short holiday to Fiji before the final hearing, or some other holiday destination.
In view of the history of this matter, I would reluctant to agree to any order permitting the children’s names to be removed from the Airport Watch list, and certainly reluctant to agree to any order that the children be allowed to leave the jurisdiction of the Commonwealth of Australia, until a final hearing has taken place and is determined.
Therefore the application to remove the children’s names from the Airport Watch list is refused.
Second, the Father seeks an order that the Mother should not take the children to consult medical practitioners in Melbourne, but should only take them to see a medical practitioner in Sydney.
Certainly there is a great deal of suspicion and lack of communication, if not outright hostility, between the parties. However, I view this order in the light of the Mother’s history, or the Mother’s current circumstances, which involve her mother and her sister living in Melbourne, and the Mother’s expressed desire to live in Melbourne, and the fact that she has spent a considerable amount of time in Melbourne, comparatively recently. I can take judicial notice of the fact that Melbourne is a large city in Australia, and has many experienced medical practitioners, and many good hospitals, should that be necessary.
The overriding concern of the Court must be the best interests of the children. It is doubtful if the best interests of the children coincide with a restriction on medical practitioners being consulted from only one city. There may well be occasions for a medical practitioner, or a specialist medical practitioner in Melbourne to be consulted about the welfare of the children, and in the absence of specific evidence to the contrary, I would be reluctant to make such an order. So that application is refused.
There is also sought a restraint on the Mother from coming within 10 metres of the Father’s home. This is brought with a history of acrimony between the parents, involving the intervention of the police, and proceedings in the local court. It is my understanding that as a result of proceedings at the [K] Local Court before his Honour, [Mr F], that the Mother was placed on a good behaviour bond, but his Honour declined in the circumstances to issue an apprehended violence order as well.
I am not of the view that this Court should second-guess a decision of the Local Court. His Honour is an experienced magistrate, and as is well-known, has in fact been on the bench for over 21 years. His Honour has given his reasons as to why he imposed a bond but did not go further to impose an apprehended violence order as well. If there are specific circumstances that arise, that warrant the Father having a fear for his safety in his new residence, then it is always open to him to apply to the Local Court for the issue of an apprehended violence order.
I am not of the view that in these circumstances this Court should issue an order in similar terms to that which the Local Court declined to do. That application is refused.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 4 August 2010
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