Starr and Ewer

[2012] FamCA 91

FAMILY COURT OF AUSTRALIA

STARR & EWER [2012] FamCA 91

FAMILY LAW - CHILDREN – final orders – where the father has indicated that he has no further intention to participate in the proceedings – best interests – orders made in terms of the mother’s application with minor corrections and amendments – orders that the children reside with her and that she have sole parental responsibility for them.

Family Law Act 1975 (Cth) ss 60CA & 60CC

APPLICANT: Ms Starr

RESPONDENT: Mr Ewer

FILE NUMBER: TVC 1326 of 2011

DATE DELIVERED: 23 January 2012

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

EX TEMPORE REASONS OF: Burr J

HEARING DATE: 23 January 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Knight
SOLICITOR FOR THE APPLICANT:	Stevenson & McNamara

COUNSEL FOR THE RESPONDENT:	Not applicable
SOLICITOR FOR THE RESPONDENT:	No appearance by the father

Orders

UPON NOTING:-

(a)the intimation of the mother’s legal representative that he has been informed by the mother that the father does not intend to participate any further in these proceedings;

(b)that all attempts made by the Court this morning to reach the father by telephone have failed; and

(c)that the father attended the hearing before Registrar Filipello on 21 December 2011 by telephone and was therefore aware of the date and time of today’s hearing

IT IS ORDERED THAT:-

1. The mother have sole parental responsibility for the children J born … September 2006, R born … May 2008 and B born … April 2011.

2. The said children live with the mother in Townsville.

3. Without limiting the parental responsibility of either parent pursuant to these orders, the mother shall keep the father informed with respect to any significant issue affecting the children and for the purposes of these orders “parenting issues” include, but are not limited to:-

   (a)any medical or health matter concerning the children;

   (b)any medical or health matter affecting the mother which may affect the ability of the mother to care for the children;

   (c)matters relating to the education of the children, including but not limited to, the choice of school and curriculum and the provision to the father of all school reports, school photographs and all communications from the children’s school(s) other than with respect to matters of routine and administration;

   (d)matters concerning the social development and sporting activities of the children;

   (e)matters concerning the religion or faith of the children;

   (f)any change of address or home or work telephone number;

   (g)in the event that the mother at any particular time is unable to personally supervise the children, the father shall be given notice of same.

4. The father spend time with and communicate with the children at such times as may be agreed between the parties UPON NOTING that:-

   (a)the  father is to be responsible for the cost of all transportation;

   (b)the mother is to ensure that the children are available to receive telephone calls;

   (c)the mother is to ensure that the telephone facilities are available for the purposes of the telephone calls;

   (d)the mother is to allow the children to speak privately with the father without the phone on speaker;

   (e)in relation to all telephone communication, the parties shall refrain from talking to the children about adult issues.

5. For a period of six [6] months from the date hereof, all handovers are to occur at Relationships Australia.

6. At the expiration of six [6] months from the date hereof, all handovers are to occur at McDonalds at L.

7. Prior to February 2012 the father shall participate in and complete a parenting course and anger management course and shall provide the mother with evidence that the courses have been undertaken and completed.

8. The parties are restrained and an injunction is hereby granted restraining each of them and their partners from criticising or denigrating the other party or extended family members in the presence of or within the hearing of the said children.

9. The parties are to encourage and not undermine each child’s relationship with the other party.

10. The parties are to advise the other of any change of telephone number or residential address within twenty-four [24] hours of such change occurring.

11. The parties are restrained and an injunction is hereby granted restraining each of them from consuming alcohol in excess of the Queensland legal driving limit or taking illicit drugs whilst the children are in their care.

12. In the event of any dispute as to the interpretation, implementation or enforcement of these orders (including any claim by either party that these orders should be varied) the parties shall first attend Family Dispute Resolution (“FDR”) with a FDR practitioner appointed by the parties and make a genuine attempt to resolve the dispute UPON NOTING that failing agreement as to such appointment, the party raising the dispute shall nominate three [3] FDR practitioners, one [1] of whom shall be chosen by the other party within fourteen [14] days of a request being made.

13. The parties are restrained and an injunction is hereby granted restraining each of them from removing the children from the Queensland area for a period in excess of seven [7] days without the written consent of the other party and without first providing to the other party an itinerary in writing detailing where the children will be travelling, where the children will be staying including telephone contact details and the means of transport to be utilised including air, bus or train, details of the departure and return dates and times, with such information to be provided at least fourteen [14] days prior to the departure of the children from Queensland.

14. All applications are otherwise dismissed and removed from the pending list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Starr & Ewer 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 TOWNSVILLE

FILE NUMBER: TVC 1326  of 2011

Ms Starr

Applicant

And

Mr Ewer

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me the Initiating Application of the mother filed on 13 December 2011.  In it she sought a range of final orders and interim orders.  However, it would be fair to say that her application was prompted by the failure of the father to return two of the children, J born in September 2006 (aged almost 5 ½ years) and R born in May 2008 (aged almost 4 years), to her in December 2011.  The urgent application which the mother then filed resulted in orders being made by Principal Registrar Filippello on 21 December 2011 by which time arrangements had been made for the children to be returned into the care of the mother.

2. Various other orders were made at that time also but in particular that the father file his responding materials by 15 January 2012.  He has not done so and I am informed by Mr Knight for the mother that she has received communication from the father indicating that he does not intend to participate further in these proceedings.  All attempts by the Court this morning to reach the father by telephone have failed. 

3. I am satisfied that the father well and truly knew of the proceedings before the Court this morning as he attended by telephone on the occasion before Registrar Filippello on 21 December 2011 at which time the proceedings were adjourned before me to today’s date.

4. There is an obvious omission from those orders, namely that the youngest of the children, B born in April 2011 (aged almost 1 year), was not included in those orders.  I understand why she was not included at that time in that the urgency was directed to the elder two children who had been retained by the father.  However, I am satisfied that the Initiating Application has been served upon the father and in that Initiating Application orders are sought that all three children live with the mother and that she have sole parental responsibility for them.

5. I am satisfied therefore that the father in indicating that he has no further intention to participate in these proceedings understands that these proceedings relate also to B. In all the circumstances I am satisfied that it would represent the best interests of all of the children if I made final orders today and otherwise dismissed all proceedings before the Court. In making that determination I have had regard to all relevant sections of Part VII of the Family Law Act but in particular, Sections 60CA and Sections 60CC of the Act. In the circumstances of this matter and given the father’s intimation as to his intention not to further participate in the proceedings, it is in my view unnecessary to articulate reasons in relation to each of the individual primary considerations and additional considerations in Section 60CC.

6. I therefore make final orders with appropriate corrections and amendments in terms of paragraphs 1 to 21 inclusive of the mother’s aforesaid Initiating Application save and except for paragraphs 11, 17 and 18, and further that paragraphs 8 and 10 will read that “such times and such communications be at times as agreed between the parties”.  I otherwise dismiss all other proceedings before the Court and remove all matters from the pending list. 

I certify that the preceding six (6) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr delivered on 23 January 2012.

Associate: 

Date: