SALMON & HOWARD

[2012] FamCA 1016

FAMILY COURT OF AUSTRALIA

SALMON & HOWARD [2012] FamCA 1016

FAMILY LAW – CHILDREN – Interim parenting orders pending the final hearing

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Salmon

RESPONDENT: Ms Howard

FILE NUMBER: MLC 1990 of 2011

DATE DELIVERED: 6 December 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 26 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Salamanca

SOLICITOR FOR THE APPLICANT: Berry Family Law

COUNSEL FOR THE RESPONDENT: Ms Bolton

SOLICITOR FOR THE RESPONDENT: James Harris Lawyers

UNTIL FURTHER ORDER IT IS ORDERED THAT

1. The order made on 21 December 2011 in the Federal Magistrates Court be varied as follows:

   (a)The father spend time and communicate with the children B born … July 2007 and C born … November 2008 as follows:

   (i)Each alternate weekend from the conclusion of school or kindergarten on Friday until the commencement of school or kindergarten on Monday;

   (ii)Each Wednesday from the conclusion of school or kindergarten to the commencement of school or kindergarten on Thursday morning, and if not a school day from 9:00am on Wednesday to 9:00am on Thursday each week;

2. The father spend time and communicate with the said children as follows:

   (a)For the first half of 2012/2013 long summer school holidays commencing from the conclusion of school or kindergarten at the commencement of the holidays until 6:00pm on the mid point of the said holidays;

   (b)From 6:00pm on Christmas Eve 2012 to 2:00pm Christmas Day 2012;

3. If the children are spending time with the father on Mother’s Day, the father’s time be suspended and he return the children to the mother’s care from 9:00am on Mother’s Day until 6:00pm.

4. Changeover for the purposes of these orders take place at the children’s respective school or kindergarten and if not a school or kindergarten day changeover occur at the Suburb D Library.

5. The father spend time and communicate with the children as may be otherwise agreed between the parties.

6. The mother make herself available for consultation and assessment by an appropriately qualified medical practitioner or psychologist as may be reasonably required and as nominated by the father on 14 days written notice by the father.

7. All applications for final orders be adjourned for hearing before Justice Macmillan at 10:00 am on 13 May 2013 as a 3 day matter.

8. The matter be listed for Mention before Justice Macmillan at 9:00am on 19 April 2013.

9. By 4 pm on 25 January 2013 the respondent mother file and serve upon all other parties:

   (a)any amended response setting out with precision the orders to be sought;

   (b)    the affidavits of evidence in chief of all witnesses relied upon; and

   (c)a financial statement that complies with Chapter 13 of the Family Law Rules 2004 (Cth).

10. By 4 pm on 12 April 2013 the applicant father file and serve any affidavit in reply to the affidavits of the respondent.

11. No party file any further material other than as provided by these orders without leave of the Court.

12. All parties have leave to issue subpoenae for the production of documents by arrangement with the registrar docketed with the management of the file.

13. All parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

14. Should any party fail to comply with these orders or the ensuing amending directions of the docketed registrar, the party who has complied may immediately thereafter file an application in a case supported by an affidavit seeking for the matter to proceed on an undefended basis.

15. The applicant father pay all setting down and trial fees by 4 pm on 8 May 2013 or obtain the requisite waiver thereof.

16. The practitioners for the parties file and serve electronically to my Associate by 4 pm on 8 May 2013 the following:

    (a)       a concise set of orders to be sought if different from those already filed;

    (b)a list of the applications and affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;

    (c)       a list of assets and liabilities; and

    (d)       a bullet-point summary of argument in relation to the issues in dispute.

17. Each party provide to the court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those funds have been paid and what costs are expected to be incurred until the completion of the hearing.

18. The practitioners be at liberty to approach Justice Macmillan’s Associate for an urgent listing of the matter if required.

19. The costs of the husband’s Application in a Case filed 26 November 2012 be reserved

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including solicitor acting as counsel.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Salmon & Howard has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1990 of 2011

Mr Salmon

Applicant

And

Ms Howard

Respondent

REASONS FOR JUDGMENT  

1. The father and mother were married in 2006 and separated on 2 October 2010. An order for their Divorce was made in the Federal Magistrates Court of Australia on 2 February 2012.

2. There are two children of the marriage B who is now 5 years of age and C who is now 4 years of age.

3. These proceedings were commenced by the father in the Federal Magistrates Court of Australia on 9 March 2011. The matter was listed for final hearing commencing on 21 December 2011. The order fixing the matter for final hearing was made by Federal Magistrate Riley on 20 April 2011. An order was also made on that date that the father file and serve any further affidavit 28 days prior to the trial and the mother file and further affidavit 14 days prior to trial.

4. On 21 December 2011 the mother applied for an adjournment however although Riley FM did not initially accede to the application for adjournment she ultimately determined that the matter could not be heard and determined in the time that was then available, made interim orders and otherwise referred the matter to a call over the following day when it was transferred to this Court.

5. The matter was listed for hearing before Registrar Sikiotis on 15 March 2012. There was no appearance for the mother and the Registrar Sikiotis adjourned the matter to the Judicial Duty List on 23 April 2012.  

6. The matter was listed before me on 23 April 2012. The mother was represented at that hearing. On that occasion I made orders adjourning the matter to the Judicial Duty List on 29 May 2012, requiring the mother to file and serve any response, affidavits in support and a statement of financial circumstances. I also ordered that in the event that the mother failed to comply with my order for the filing of documents that the father have leave to seek to have the matter proceed on an undefended basis on 29 May 2012.

7. On 29 May 2012, notwithstanding that the mother had failed to comply with my order for the filing of documents, I listed this matter for final hearing before me for 3 days commencing on 22 October 2012. I also made orders requiring the mother to file and serve any response, any affidavits in support and a statement of financial circumstances by 4.00pm on 17 August 2012.

8. On the 2 October 2012 the matter was listed for Mention before me and I extended the time for the mother to file her material until 4.00pm on 24 October 2012. On 24 October 2012 the mother filed what is described as a Statement of Claim and an affidavit sworn by her solicitor, James Yianoulatos of James Harris Lawyers to which he has annexed reports prepared by Dr E dated 11 October 2012 and Dr F dated 15 October 2012. The mother has still not filed either a Response, an affidavit of her evidence or a statement of financial circumstances.

9. The matter again came on for Mention before me on 7 November 2012 at which time, at the request of the father, I vacated the final hearing. I made further orders that the matter be listed for an interim hearing of parenting issues (in particular special occasions and holiday time) before me on 26 November 2012, that all parties file and serve a bullet point summary of argument of issues in dispute by 4.00pm on 22 November 2012 and that the parties file and serve any further affidavits to be relied upon by 4.00pm on 21 November 2012. I did not make any orders or directions listing the matter for final hearing as the father’s solicitor was still making enquiries as to the availability of medical practitioners to examine the mother.

10. On 20 November 2012, pursuant to my orders, the father filed an affidavit sworn the same day and an affidavit sworn by Ms G, his new partner. He attempted to file an Application in a Case the same day but for reasons which are not relevant to my decision was not permitted to do so. The documents, including the unfiled Application in a Case, were served upon the mother on 21 November 2012.

11. The mother has not filed either a Response to the father’s Application in a Case or an affidavit. The father’s Application in a Case is in those circumstances unopposed.

12. The mother’s failure to comply with my orders is part of an ongoing failure on her part to comply with orders and directions of both the Federal Magistrates Court and this Court and to prosecute her case as a result of which there have been lengthy delays and the father has been prevented from obtaining the relief he seeks. In my view the children’s welfare and these proceedings should not be controlled by or in default determined by the mother’s failure, without explanation, to comply with orders and I propose to deal with the father’s application.

13. The mother’s counsel, Ms Bolton, had prepared a bullet point summary of argument in accordance with my orders however it was not filed within the ordered time and was therefore not accepted for filing. In the absence of any new evidence, and there was none upon which the mother sought to rely, any submissions made on her behalf would of necessity have to have been based upon matters already in evidence. Ms Bolton conceded there was no evidence she could point me to in relation to the application before me today and ultimately did not seek to rely on the bullet point summary of argument prepared or make submissions on behalf of her client.

14. On 24 April 2011 Riley FM made interim orders by consent that the father and mother have equal shared parental responsibility, that the children live with the wife and that they spend time with the father from 9.00am Saturday until 6.00pm Sunday each alternate weekend and by telephone each Wednesday. On 21 December 2011 that order was varied by consent to provide that the children spend time with the father from 5.00pm Friday until 3.00pm Sunday each alternate weekend and from 4.30pm each alternate Wednesday until 9.00am or the commencement of childcare or kindergarten on Thursday and from 4.30pm to 6.30pm each other Wednesday.

15. The father now seeks to extend the time he spends with the children each alternate weekend from 3.00pm on Friday until the commencement of school or kindergarten on Monday and from 6.30pm each alternate Wednesday until the commencement of school or kindergarten on Thursday so that he spends overnight with the children each Wednesday rather that each alternate Wednesday. He is also seeking from 6.00pm Christmas eve until 2.00pm on Christmas day and the first half of the 2012/2013 long summer school holidays and the 2013 school term holidays and provision for special occasions such as the children’s birthdays and mother’s day and father’s day.

16. Although the father’s application is unopposed I must consider the best interests of the children. A determination of their best interests requires a consideration of the primary and additional considerations in section 66CC, subsections (2) and (3) of the Family Law Act 1975(Cth).  An analysis of those statutory considerations of what is in the children’s best interests must be consistent with the objectives and principles underlying those objectives outlined in section 60B(1) and (2) of the Act.

17. In Goode &Goode (2006) FLC 93-286 at paragraph 68, the Full Court said as follows in relation to the hearing of interim proceedings:

    …the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future. 

18. There has been no opportunity to test the evidence, however in this case the mother has chosen not to file any material and in those circumstances the evidence of the father is uncontested.

19. The father says that he is now living with Ms G at H Street, Suburb I. The house in which they live has three bedrooms, one of which is used for the children when they are in his care. The father says that he and the children are extremely close and they get on well with Ms G. This is consistent with the observations made by Dr J, the Family Report writer, when she saw the parties in April 2011. Her Report dated 22 November 2011 described the children as “…very responsive to their father, and they both appeared to be enjoying themselves, with both children appearing comfortable and secure in her (sic) father’s presence.” She also referred to the fact that the children needed to be collected from the child care centre with only one parent present at a time avoiding direct contact between the parents.

20. The parties in this case have consented to an order that they have interim equal shared parental responsibility. In so far as I am required to consider whether it would be in the best interests of the children and reasonably practical for them to spend equal time with the father and the mother I am mindful that in this case I am only being asked to vary an existing parenting order extending the time the father now spends with the children and that the father is not seeking equal time. The orders he is seeking would result in the children spending substantial time with both he and the mother.

21. I am satisfied that in all of the circumstances it is in the children’s best interests and reasonably practical to accede to the father’s application extending the time he is currently spending with the children as he proposes and making provision for special occasions and holidays. The orders he proposes will have the added benefit of limiting those occasions when it will be necessary for the parties to come into contact for the purposes of changeover.

22. I have fixed this matter for final hearing on 13 May 2013 and in those circumstances the orders for holidays, birthdays and other special occasions will be limited to the period pending the final hearing.  I have also made orders for the filing of documents in anticipation of the final hearing and in the event that either party fails to comply with my orders those orders do make provision for the other party to make application to have the matter proceed on an undefended basis. Given the circumstances and history of this case the mother should anticipate that any further failure to comply with my orders is almost certainly going to result in the father making an application to proceed on an undefended basis.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 6 December 2012.

Associate: 

Date:  6 December 2012