Spinks and Nadal

[2018] FCCA 1668

FEDERAL CIRCUIT COURT OF AUSTRALIA

SPINKS & NADAL [2018] FCCA 1668

Catchwords:
FAMILY LAW – Parenting – contravention application – where the mother has relocated with the children – matter transferred to Brisbane Registry.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS SPINKS

Respondent: MS NADAL

File Number: DNC 201 of 2011

Judgment of: Judge Young

Hearing date: 7 June 2018

Date of Last Submission: 7 June 2018

Delivered at: Darwin

Delivered on: 7 June 2018

REPRESENTATION

Counsel for the Applicant: Ms Gray

Solicitors for the Applicant: Grays Legal NT

Counsel for the Respondent: In person

THE COURT ORDERS THAT:

1. The contravention application filed by the father on 18 December 2017 be transferred to the Federal Circuit Court of Australia, Brisbane.

2. That the matter be listed on 26 July 2018 at 9.30am (Qld time) before Judge Jarrett at the Federal Circuit Court of Australia, Brisbane.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 201 of 2011

MS SPINKS

Applicant

And

MS NADAL

Respondent

REASONS FOR JUDGMENT

Ex - Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. In this matter, which concerns two children almost 12 and almost 14, orders were made in this Court by consent in 2013.  The mother relocated the residence of the children to Queensland, it appears almost four years ago, though that was not in conformity with the orders and was, on the face of it, a breach of the orders.  The reality of this family situation is apparently that the father went to jail in South Australia, probably shortly after the orders were made in 2014 and served, it would appear, a reasonably lengthy sentence of imprisonment in South Australia between 2014 and 2015, for, I am told by his counsel, theft offences.  In 2017 he served another period of imprisonment in the Northern Territory.  That probably, in part, explains why he has done nothing about this matter for, it appears, about four years.

3. The father’s present application is simply a contravention application. It appears to me that that is quite inappropriate in the circumstances of this case. Of course, a party has a right to make any application they want but I would have thought that, in these circumstances, what is required after an absence from the children’s lives for four years or thereabouts is that there would need to be a reassessment of the appropriateness of these orders and an assessment of whether or not some new orders ought to be made and that assessment would necessarily involve, given the ages of the children, some consideration to their wishes. That seems to me to involve, necessarily, the involvement of a family consultant either via a 11F report or a family report.

4. In my view, that is most appropriately done in Brisbane which is relatively close to the mother’s home and the home of the children.  The counsel for the father says that he will have difficulty affording the expense of travelling to Queensland. It appears to me that almost exactly the same could be said of the mother although I do not know anything about her financial circumstances at this stage because there does not appear to be anything in her affidavit material about that, as far as I can see, though there is some evidence of a child support assessment which is rather out of date and suggests that, certainly, at one point, the father was employed.  It is unclear about the mother.

5. I might say, looking at the child support assessment, the department recorded, not two periods of incarcerations that I have referred to, but five periods and, indeed, I am told about by Ms Gray about a period in 2017 which should be six periods from 2014 to 2014, 2014 to 2015, 2015 to 2015, 2015 to 2015, and then from 2015 to a date unspecified in the assessment and, I am told, again in 2017, all of which simply reinforces the points that I have made that this father has been absent from the children’s lives apparently for a very long period due, in part, at least to multiple periods of imprisonment. So I think it is obvious that there has to be a reassessment of the current orders, and I think that is best done in Brisbane, so I propose to transfer the matter to the Brisbane registry.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 26 June 2018