Simon & Harvey

[2011] FamCA 213

FAMILY COURT OF AUSTRALIA

SIMON & HARVEY [2011] FamCA 213

FAMILY LAW - CHILDREN - With whom a child spends time - Orders - Variation

Family Law Rules 2004 (Cth)

APPLICANT: Ms Simon

RESPONDENT: Mr Harvey

FILE NUMBER: BRC 10327 of 2008

DATE DELIVERED: 21 March 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 21 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Nelson (amicus curiae)

Orders

1. The applicant mother serve her Application in a Case that was filed on 2 March 2011 and the supporting affidavit filed on 2 March 2011 as well as her supporting affidavit filed on 11 March 2011 on the respondent father as soon as practicable.

1. The mother’s Application in a Case be listed for further hearing before the Honourable Justice Forrest after she has effected service on the father, such further hearing to be in the duty list at 10.00 am on Monday, 23 May 2011.

1. The mother inform the father of the hearing date by serving him with a sealed copy of these Orders and a copy of my reasons given extemporaneously today.

It is noted that publication of this judgment under the pseudonym Simon & Harvey is approved pursuant to s 121 (9) (g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10327   of 2008

Ms Simon

Applicant

And

Mr Harvey

Respondent

REASONS FOR JUDGMENT

1. Before me I have an application by Ms Simon, formerly known as Ms Harvey, having married recently in February and taking on the name of her new husband, Mr Simon. It is an application for her to be given leave to file and serve an initiating application in a parenting matter seeking a variation of the parenting Orders that were made by His Honour Justice Jordan in this Court on 25 November 2005 in respect of two of her children, namely T born … December 1994 (16 years of age) and P born … June 1998 (12 years of age). Of note is the fact that when Justice Jordan made his Order that results in Ms Simon having to come to Court in the way that she is, T was 11 years of age and P was 7 years of age.

2. Those Orders provided for T and P to live with their father Mr Harvey and for the mother to have contact with P at all times that may be agreed between the parties but for a period of two (2) hours each Thursday; for a period of two (2) hours on the children’s birthdays and the mother’s birthday; for a period of two (2) hours on Mother’s Day; (subject to the availability of a supervisor) for a period of two (2) hours on Easter Sunday and Christmas Day each year. They also provided that the mother have contact with the older child (T) for two (2) hours each fortnight to coincide with contact with P pursuant to the other Orders. The contact with the two boys was to be supervised by Ms R or such other person as agreed to by the parties from time to time.

3. What brings the mother to Court today is the fact that paragraph 3 of the Orders of 20 January 2006 says that until further Order the applicant, Ms Harvey, is restrained from filing any applications under the Family Law Act in relation to the children.

4. Interestingly as I have just remarked in an interchange with Counsel, Mr Nelson, who appears as amicus curiae for the applicant mother today, the Orders that bring the mother to Court here today were made by the Honourable Justice Jordan on 20 January 2006 and on that date His Honour dismissed all outstanding applications and removed the proceedings from the list of matters awaiting finalisation, discharged the child representative and ordered until further order that the mother be restrained from filing any application in relation to the children in this Court except by leave of the Judge.

5. In his reasons [paragraph 8] his Honour said:

   “I am not satisfied it is in the interests of these boys to be further indirectly involved in this litigation and be re-interviewed.”

6. His Honour went on further to say [paragraph 9]:

   “I propose to dismiss all outstanding applications and I propose to order that, if either of the parties wishes to come to the Court again, before they institute proceedings and serve the other side and embark upon the process, they have to come to the Court individually and convince the Court that the application be re-opened, as the first step.”

7. His Honour went on to say that there would have to be very special reasons - it would have to be a different development.

8. It seems inconsistent with his reasons that the Order only restrains the mother. I understand that the mother applied once before pursuant to that Order, on 14 July 2009, for leave to bring proceedings and that application was heard by the Honourable Justice O’Reilly and was dismissed. On 2 March 2011, the mother filed this application, and the supporting application, and then subsequently another supporting affidavit on 11 March 2011. In her two affidavits she deposes to the factual circumstances whereby in essence when the Orders were made in 2005 and again in 2006, and until about October 2007, she and the father lived in Town 1, north of Brisbane and the children lived with the father. That made it relatively easy for the parties living in that small country town for the orders as made by Justice Jordan to be complied with.

9. The mother says from around October 2007 she was regularly travelling to Brisbane for a period of a few months for medical reasons, then she moved to Brisbane in 2007 and, effectively, the overnight contact that she deposes to having been put in place by agreement in January 2007, which was not provided for in the Orders, stopped.

10. In mid 2008, the father and the applicant mother agreed to supervised overnight contact with the two children for four nights each school holiday beginning in September of that year that only happened once in September 2008. The mother deposes that the reason for that was that the company they were using for supervision closed.

11. At the beginning of 2009 the mother and the father agreed to supervised contact with the two boys taking place at Contact Centre 1, he says in Town 2, Mr Nelson says that was actually Town 3 for two hours once a month on a Sunday. It could have very well been Town 2 given that the same organisation I understand runs a number of different centres that facilitate contact handovers and supervised contact.

12. The mother deposes to the supervised contact at Contact Centre 1 continuing until the father cancelled four consecutive visits between July and November 2010 but that she then saw the boys in December 2010 at Contact Centre 1. That was the last time, I take it, before this application.

13. She says that she has not been able to speak to the boys and when she calls they are not at home. I am told from the bar table that Mr Nelson has instructions that at least the sixteen year old boy said that he wants to see his mother. The mother also deposes in her affidavit to other circumstances having changed. I already mentioned she got married in February 2010 to Mr Simon; they have a loving relationship and a stable home in Town 4.

14. In the circumstances, I am satisfied that as it is now five years since the Orders were made the mother ought to be given a chance to at least be in a position whereby she can get to spend some time with these boys and that they can get to spend time with her, more importantly.

15. Mr Nelson refers me to Rule 11.05 of the Family Law Rules 2004.

    Application for permission to start a case.

    (1)       This rule applies if:

    (a)    the court has made an order under subsection 118 (1) of the Act or paragraph 11.04 (1) (b); and

    (b)    the person against whom the order was made applies for permission to start or continue a case.

    (2)   The application must be in an Application in a Case and must be made without notice to any other party.

    Note An applicant must file an affidavit stating the facts relied on to establish the need for the orders sought (see rule 5.02).

1. Rule 11.05(3) provides that on the first court date for the application:

(a)the court may dismiss the application; or

(b)the court may:

(i)order the person to:

A.serve the application and affidavit; and

B.file and serve any further affidavits in support of the application; and

(ii)list the application for hearing

1. Rule 11.05(4) provides that:

   The court must not grant permission to start or continue a case unless it is satisfied that the case has a reasonable likelihood of success.

2. Mr Nelson points to that rule and does say, having regard to the fact that the supervisor that was appointed by the Orders is no longer available, although I do note that the Orders provided for supervision otherwise as agreed (and that has what has happened between these two parties).

1. It is not clear to me why supervised contact at Contact Centre 1 was cancelled in the later part of last year and it is not clear to me why none happened in January and February before the mother filed her application recently. In the circumstances, I am not satisfied at this first return on the ex parte basis that I can say definitely that the mother’s case has a reasonable likelihood of success and I therefore am minded to do that which I am empowered to do under rule 11.05(3) that is, order the person to serve the application and supporting affidavits and list the application for hearing and that is what I intend to now do.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 21 March 2011.

Associate:     

Date:              30 March 2011