Baxter and Porter

[2008] FamCA 200

FAMILY COURT OF AUSTRALIA

BAXTER & PORTER [2008] FamCA 200

FAMILY LAW – PRACTICE AND PROCEDURE – Transfer of proceedings

Family Law Act 1975 (Cth)

Re K (1994) FLC 92-461; 17 Fam LR 537

APPLICANT: MR BAXTER

RESPONDENT: MS PORTER

FILE NUMBER: LNC 380 of 2007

DATE DELIVERED: 26 MARCH 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 26 MARCH 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS GELSTON

SOLICITOR FOR THE APPLICANT: DIRECTOR OF LEGAL AID

COUNSEL FOR THE RESPONDENT: MS DEVINE

SOLICITOR FOR THE RESPONDENT: FARAM RITCHIE DAVIES

Orders

1. That all outstanding applications be transferred to the Federal Magistrates Court of Australia sitting at Hobart to be listed before a Federal Magistrate as soon as practicable.

2. That until further order the child J born … September 2000 live with the husband and the child C born … September 2004 live with the wife.

3. That the wife make J available for collection by the husband at the Tullamarine Airport at Melbourne at a time to be agreed but no later than midday on Sunday 30 March 2008.

4. That pursuant to s 62G of the Family Law Act 1975 (Cth) a family report be prepared for the purposes of the final hearing before the Federal Magistrates Court of Australia.

5. That pursuant to Section 68L(2) the Family Law Act 1975 the children J born … September 2000 and C born … September 2004 be separately represented AND IT IS REQUESTED that the Legal Aid Commission of Tasmania arrange such separate representation.

6. That forthwith upon appointment by the said Legal Aid Commission of Tasmania or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

7. That within 48 hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

8. That all outstanding applications of an interim nature be dismissed and removed from the list of cases awaiting a hearing.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: LNC 380  of 2007

MR BAXTER

Applicant

And

MS PORTER

Respondent

REASONS FOR JUDGMENT

1. This is an application in the Judicial Duty List. 

2. The case is about two children who until recently lived together in Tasmania.  By agreement with their parents, they were separated.  By some circumstances about which I am not at all comfortable, the wife in Victoria got both children back together again and now declines to return the older child to Tasmania.  As a consequence, the husband made an application to the Hobart registry for a recovery order.  The parties have not had court orders until now.  Unfortunately, there has been no judicial officer available in Tasmania this week as a result of which, I heard the applications of both parties.  The wife travelled down from rural Victoria and was represented by her solicitor and the husband travelled to the Hobart registry of the Court and I heard his case through his solicitor by video link up from the Hobart registry.

3. The two children are J who was born in September 2000 and who is seven years of age and C who was born in September 2004 and is therefore three years of age. 

4. The husband is 25 years of age and the wife is engaged in home duties.  She is also 25 years of age.  The parties married in December 2001 and separated in June 2006.  They divorced in July 2007.  The wife has since remarried.  Notwithstanding their divorce and the wife’s remarriage, I propose throughout these reasons to refer to them as husband and wife for convenience sake only.

5. I had to determine the matter on the papers having regard to the very limited amount of time that was available. 

6. The facts which gave rise to the children being separated are simple.  What happened thereafter is a matter of some contention and I am not in a position to make precise findings.  However it is sufficient to say that I am satisfied that the wife acted unilaterally in retaining J in circumstances where she should not have done so.  I made it clear to Ms Devine on behalf of the wife at the commencement of hearing that my preliminary view was that both parties had to go back to the starting point and then resolve the parenting issue in a civilised way as they should otherwise have done. 

7. Subsequent to separation, there is little doubt that the wife was the predominant carer of both children.  Both parties lived in Tasmania.  The mother moved away from Eastern Tasmania to Northern Tasmania to live predominantly as a result of meeting a man to whom she is now married.  Despite the move away from the husband, he continued to see the children every second weekend.

8. Towards the end of 2007, the wife indicated an intention to move to regional Victoria following her fiancé who had obtained employment.  It was at that time, she announced she intended to marry in March 2008.

9. The husband maintained his relationship notwithstanding the tyranny of distance and saw them twice in regional Victoria and then had the children in Tasmania for almost four weeks over the Christmas break.  On any view of the evidence, I am satisfied that the husband has a close and loving relationship with both children and that there is no basis upon which the wife could have any concerns about the care of one or either of the children with the husband.  As I understand the wife’s argument, the highest she can say about concern for the children in the care of the husband is that he has other people looking after them because he works full-time.  In my view, that is not a handicap.

10. In November 2007, according to the husband, the wife informed him that she could no longer cope with J.  It must be kept in mind that J was then seven years of age.  As a result of a discussion between the parties, they prepared a written agreement which runs to two pages which was signed by all of them on 30 November 2007.  There is some suggestion that the agreement ought to be looked at in light of the parties not having had lawyers involved in it but I am satisfied that it is sufficiently comprehensive for that not to be a problem.  There are many issues set out in the document which indicate that the parties were focussed on the best interests of J in particular. 

11. What is abundantly clear from the agreement is that J was to live with the husband.  One of the other conditions in the agreement was that arrangements had to be made for J to visit her mother for a period of a week in March 2008 to attend the wife’s wedding.

12. J settled in with the husband and commenced school in 2008 in Tasmania.

13. Reading the correspondence between the lawyers in early 2008, it transpires that the wife took the view that she had made a mistake and wanted to change her mind.  Negotiations then began for the parties to have a conference organised under the auspices of Legal Aid Commission of Tasmania.  Each party espoused that they were prepared to attend that conference but both said that they did not believe it was in J’s best interest to remain living with the other. 

14. Notwithstanding the need to attend the conference and discuss the matter, the wedding of the wife was looming.  About a week before the wedding, J made clear to the husband that she wanted to go and was excited.  The wife’s family were all attending. 

15. What followed thereafter was very much in dispute.  The husband said that on the evening of 11 March 2008, he was able to speak to J on the telephone for only a few seconds and that the child was crying and hysterical.  He said that she told him she wanted to come home and that his telephone call was terminated.  The wife denies that the call was only for three seconds.  It is not surprising that the wife’s view is that J says that she wanted to stay with the wife.

16. Needless to say, when the time came for J to be returned to Tasmania, the wife declined to return her as a consequence of which the application of the husband was then filed.  The wife said that she would then enrol J in her new school in regional Victoria but that was not immediately a problem because of the fact that school holidays were just about to begin.

17. On the basis of the position adopted by the two parties, one would not have expected there to be a major argument about what was in the best interests of both children having regard to the fact that they had been separated and not for a very long time.  However, having issued the application for the recovery order, members of the wife’s family joined the fray.  The wife’s own mother and sister filed affidavits on behalf of the husband indicating their concerns about what the wife was doing.  Whilst there may be some emotive language in their statements about the wife, the major concern that all parties seem to have expressed is the fact that the wife’s new husband consumes a lot of alcohol, is loud and aggressive and has been involved in disciplining the children.  The relatives along with the husband have expressed concern about that position.  In her own material, the wife expressed the view that whilst her new husband consumed alcohol, it was not to excess except for the days around which the wedding occurred.  The wife also conceded that her new husband had been involved in disciplining the child C.

18. It is clear from Part VII of the Family Law Act 1975 (Cth) (“the Act”) that any parenting order should only be made on the basis of what is in the best interests of the children. It goes without saying that unilateral action by parents is normally not in the best interests of children particularly where the children have settled into a particular way of life as had happened here for J.

19. I indicated to the solicitor for the husband that I was then concerned about the question of whether it was appropriate to make orders on very limited information about the child C.  He had not been with the husband other than for holiday periods and he is not yet of school age.  In my view therefore, he was in a different category to that of J.  That is not to in any way diminish the seriousness of the splitting of siblings but it must be kept in mind that it was the parties who felt that it was appropriate for those children to be divided in November 2007.

20. Ultimately when determining what is in the best interests of children, one must look at the provisions of s 60CC of the Act.

21. I am satisfied that both parties have had a meaningful involvement in the lives of these children and in different ways.  However, both children will benefit from having a meaningful relationship with the parents under the arrangements that they have made themselves outside of the orders that I propose to make to transfer the case to Hobart.

22. Section 60CC requires me to consider as a primary objective the need to protect the children from physical or psychological harm. I expressed concern in this case that I had no material from the wife’s new husband bearing in mind that it was he about whom much of the concern was raised. Ms Devine for the wife said that there were very limited opportunities and time for that affidavit material to be prepared but in the circumstances, I think it is appropriate to say that having regard to the accusations made, the removal of at least J from the wife’s home on an interim basis satisfies the need to protect her from both the physical and psychological harm by being exposed to abuse, neglect or family violence. I am troubled about the position of C but the husband seems content for C to remain there at least on an interim basis having regard to the fact that I have been assured that we can obtain a rehearing relatively soon in the Federal Magistrates Court of Australia in Hobart.

23. There are additional considerations in s 60CC that require some thought. The evidence in this case however is very limited and I rely very heavily on what the parties themselves wrote in November 2007.

24. Each of the parties seems satisfied that the other is capable of caring for the child in their care.  Both say that it is appropriate for the children to live with them but otherwise they would not have any concerns about the children having some form of relationship albeit on a part-time basis with the other.

25. I am entitled to take into account the willingness and ability of each parent to facilitate and encourage the relationship between the children and the other.  It is quite clear that the wife over-held J in unjustifiable circumstances.  She is to be criticised for that.  I am satisfied that she determined to do that on the basis that she felt she had made a mistake in November 2007.  Whilst she may have felt that way, I do not accept that it was a decision in 2008 made in consultation with the husband as it should have been having regard to all of the matters that are set out in the agreement in November 2007.  I am therefore very concerned about the fact that the wife took the unilateral action and have some queries about just what her position is for the future. 

26. The return to Tasmania of J in my view is justified having regard to the fact that the wife herself said that she was comfortable in November 2007 for the husband to look after J.  J has been enrolled in school and spent the majority of the first term in an area with which she is familiar and no doubt amongst friends that she had made over a number of earlier years.  J was to have been enrolled in a new school but it appears that she has not attended.  Each party says that the child wishes to remain with them however the majority of time seems to have been spent between J and her father.  I have inferred that the excitement of the wedding has contributed to any statement that J may have made about wishing to remain with her mother and those are matters that need investigation.  I am not in a position to say what the effect of J being away from her mother again will have.

27. There are clearly practical difficulties in the children not only being separated but being separated by a vast distance.  The parties have assured me that they will try and overcome that by spending time with the other child. 

28. Section 60CC also requires me to look at the capacity of each of the parents to provide for the needs of the children. On the basis of the agreement reached in November 2007, it can hardly be said that the husband does not have the capacity to care for J even if there are other people assisting him. It is a common phenomenon these days that parents responsible for the care of children have to work for their survival and it is not unusual for children to be cared for by other people.

29. The major concern I have however is the separation of the siblings.  I do not have sufficient information to fully understand the nature of the relationship between the children nor of the impact upon their separation from one another.  That is a matter that needs close examination.

30. Section 60CC also requires me to consider the attitude to the child on the responsibilities of parenthood which has been demonstrated by each of the parents. As I have already criticised the wife for her unilateral action, I will not repeat what I have already said. What is important now is what the parties do to ensure that the relationship of the other parent with the child in their care is enhanced whilst at the same time the relationship between the siblings is fostered. That will no doubt be a significant issue for the court determining the matter in the future.

31. I have not been able to discern any family violence issues between the parties but have already expressed concern about the unknown question of the wife’s new husband.

32. In the circumstances, I am satisfied that it is in the best interests of J for an order to be made that she return to her father in Tasmania.

33. I raised the question of the venue and that is important in respect of the need to have the matter sorted out because of the tyranny of distance but also the splitting of siblings.  On all the inquiries I have made, it seems that the most logical place for the case to be heard is in Hobart where the wife still has a number of members of her family who despite having sided with the husband for the purposes of this interim hearing, hopefully will be prepared to support the wife by providing her with accommodation should she travel to Hobart.

34. I also had the benefit of hearing from the Director of Court Mediation Services in Hobart who indicated that she saw no impediment to an order being made that a family report be prepared by this Court that could be directed specifically for use in the Federal Magistrates Court.  I was extremely grateful for that cooperation. 

35. Ms Gelston on behalf of the husband indicated that it might be a good idea to make an order for an Independent Children’s Lawyer in this case.  Having regard to all of the issues set out in Re K (1994) FLC 92-461; 17 Fam LR 537, this is an appropriate case for these children to be independently represented and I propose to make orders accordingly.

36. All indications are that the matter needs to be heard as a matter of priority notwithstanding all of the other pressures on the Court at all levels.

37. Accordingly, I propose to dismiss all interim applications and send the matter to a final hearing as soon as possible.

I certify that the preceding Thirty Seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  31 March 2008