TALINES & KNOWLES

[2015] FCCA 2873

FEDERAL CIRCUIT COURT OF AUSTRALIA

TALINES & KNOWLES [2015] FCCA 2873

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – stay.

Legislation:

Family Law Act 1975 (Cth), s.60CA

Applicant: MS TALINES

Respondent: MR KNOWLES

File Number: SYC 1426 of 2015

Judgment of: Judge Scarlett

Hearing date: 21 October 2015

Date of Last Submission: 21 October 2015

Delivered at: Sydney

Delivered on: 21 October 2015

REPRESENTATION

Solicitor for the Applicant: Mr Ulbrick

Solicitors for the Applicant: G & D Lawyers

Respondent: In person

Counsel for the Independent Children's Lawyer: Ms Murphy

Solicitors for the Independent Children's Lawyer: John Spence & Associates

ORDERS

UNTIL FURTHER ORDER

1. Order 1 made on 13 October 2015 is stayed.

2. The Applicant Mother is restrained from entering the Respondent Father’s place of residence at any time.

3. The Respondent Father is to file and serve a Response to the Application in a Case filed on 3 September 2015 and an affidavit setting out the facts upon which he relies no later than Friday 6 November 2015.

4. The Father is granted leave to issue a further five (5) subpoenas.

5. The Independent Children’s Lawyer is granted liberty to apply on three (3) days’ notice.

6. The proceedings are otherwise adjourned to Monday 16 November 2015 for further mention at 10:00 am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1426 of 2015

MS TALINES

Applicant

And

MR KNOWLES

Respondent

REASONS FOR JUDGMENT

Application

1. The Father, who is the Respondent to the substantive parenting proceedings, seeks a stay of the order made ex parte on 13^th October suspending his time with the child.  He seeks a stay of that order until the matter is next scheduled to be before the Court on Monday, 16^th November.  He says that he did not receive adequate notice of the proceedings on the 13^th and he denies the allegations made by the Mother in her affidavit, which can be summarised as:

   (1) that he has disregarded the Court orders and removed the child from school or not returned the child to her care at any time and;

   (2) as a result, the child has lost some nine days of school.

2. The Father, as I said, denies these allegations, said the child has, in fact, been injured and he has done no more than attend to the care of the child.  He specifically wishes to deny the matters contained in the Mother’s affidavit of 14^th October. 

3. In that affidavit, she sets out matters that she says took place on 7^th and 11^th September, and 2^nd, 5^th, 6^th, 7^th, 9^th, 11^th, 12^th October.  She states at paragraph 18 of her affidavit that she does not know what to do as the Father is completely disregarding the orders.  She complains at several points in her affidavit that the Father has attempted to persuade her to go to his home and go into his home, which she does not wish to do.

4. The Father has not yet had an opportunity to file an affidavit in which he can set out his own view of the facts, nor has he filed, at this stage, a response to an application in a case.  Procedural fairness would require that he be given that opportunity.  At the same time, there must be an avoidance of untoward incidents between now and 16^th November and the parties must comply strictly with the orders that were made on 24^th June.  I am not in a position to make any factual finding about the Mother’s claim of the Father endeavouring to inveigle her into his home for whatever purpose or her other claims at this stage.

5. There is an order in place restraining the Father from entering the Mother’s home, and, in my view, there should be an order restraining the Mother from going into the Father’s home.  The communication between these parties is very poor and there is a high degree of conflict between them.  There needs to be a peaceful period of time so that the child can attend school regularly and not be subject to any disruptions, certainly until the matter is next before the Court on 16^th November.  The Father has indicated that he seeks leave to issue further subpoenas.  He is not currently represented by a lawyer, but his lawyers previously issued a total of five subpoenas, and he now needs to issue further subpoenas in order to assist his case.

6. I propose to grant him leave to issue a further five subpoenas.  It should not be necessary for the matter to be brought back to Court for any breach of the orders between now and 16^th November, but if such an eventuality occurs or for any reason, the Independent Children’s Lawyer will be given liberty to apply on three days’ notice to bring the matter back to court. 

7. I am of the view, however, that until this matter can be resolved, the Father has the opportunity of putting on his material, that order number 1 that was made on 13^th October will be stayed.  I make the following orders until further order.

8. I require a transcript of my reasons for this decision on a next-day basis.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  23 October 2015