White and Andrews (No 3)

[2013] FamCA 979

FAMILY COURT OF AUSTRALIA

WHITE & ANDREWS (NO 3) [2013] FamCA 979

FAMILY LAW – CHILDREN – Order by consent for the mother to hold the child’s passport – father’s time with the child be suspended until further order

Family Law Act 1975 (Cth)

APPLICANT: Ms White

RESPONDENT: Mr Andrews

FILE NUMBER: MLC 8839 of 2008

DATE DELIVERED: 11 April 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 11 April 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: Mr Reid

SOLICITOR FOR THE RESPONDENT: Michael Reid Legal

ORDERS

IT IS ORDERED THAT

1. All application be adjourned for further hearing in the Judicial Duty List at 10.00 am on 19 July 2013.

2. By 4pm on 10 May 2013 the father file and serve any further affidavits on which he proposes to rely.

3. By 4 pm on 10 June 2013 the mother file and serve any further affidavits in response on which she proposes to rely.

4. The solicitors for the father forthwith file and serve a Notice of Address for Service.

IT IS ORDERED BY CONSENT THAT

1. Paragraph 19 to 21 inclusive of the orders made by Justice Dessau on 26 October 2007 be and are hereby discharged.

2. The child’s passport be held by the mother.

3. Until further order the father’s time with the child be suspended.

IT IS NOTED that publication of this judgment by this Court under the pseudonym White & Andrews (No 3) 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 8839 of 2008

Ms White

Applicant

And

Mr Andrews

Respondent

REASONS

1. This matter was listed for hearing before me on 25 January 2013.  The father appeared in person by telephone on that date. The mother appeared in person. On that date I made parenting orders with respect to the child of the relationship, C, and reserved my reasons for the decision, publishing those reasons on 8 February 2013.

2. The orders I made included an order that as soon as practicable, the mother serve a sealed copy of her Application in a Case filed 5 October 2012, her Initiating Application filed 29 November 2012, her Affidavit filed 5 October 2012 and a copy of this order upon the father by pre-paid post to a nominated address and by email addressed to him care of his sister’s email address.

3. I also adjourned the matter for hearing before me this day and gave the father, given what I found to be the significant deficiencies in the affidavit material upon which he was seeking to rely, the opportunity to file and serve any further affidavits on which he sought to rely by 22 February 2013.

4. The father is now represented and he has instructed his solicitor he did not receive the documents forwarded to him by the mother until 1 March 2013.  Although the mother says she served the documents, other than the court order and my reasons, upon the father by email to his sister’s email address immediately following the hearing on 25 January 2013, it is clear that she did not send the documents to the father by post until 22 February 2013, the date upon which he was to file any further affidavit material upon which he sought to rely.

5. The delayed postal service of the documents, however, does not explain why the father has not, since 1 March 2013, filed the further affidavit material upon which he seeks to rely.

6. There is, however, some progress in the matter.  The father has now, through Mr Reid, who appears on his behalf, indicated that he would consent on a final basis to an order that the mother hold the child’s passport.  He also consents on an interim basis to the suspension of all parenting orders that he spend time with the child.

7. The matter is to be otherwise adjourned.  There were a number of possible dates available.  They included 4 and 5 June and the 19 July in the Judicial Duty List.  The father’s preference was 4 June; the mother’s preference was 19 July.  I have indicated strongly, in all of the circumstances, given the manner in which the father has conducted these proceedings and taking into account the fact that the mother is financially supporting the child without any assistance from the father, that I would accommodate her needs with respect to employment as far as I am able to do so.

8. She says that a Friday is more convenient to her and she is not teaching that day and therefore she does not need to inconvenience anyone else in order to attend court on that date.  Accordingly, I propose to adjourn the matter to 19 July.

9. There was also some discussion in relation to evidence as to the wishes of the child and the possibility perhaps of a report or a s 11F assessment.  Whilst I agree that the wishes of the child in this case may well be significant, until the father files material and it is clear the basis of what his proposals are in relation to spending time with the child, I am of the view that such counselling or assessment would be premature.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 11 April 2013.

Associate: 

Date:  16 December 2013