Bendall and Macgreggor

[2009] FamCA 1240

FAMILY COURT OF AUSTRALIA

BENDALL & MACGREGGOR [2009] FamCA 1240

FAMILY LAW – CHILDREN – Best interests
FAMILY LAW – CHILDREN – With whom a child lives
FAMILY LAW – CHILDREN – Child related proceedings

Family Law Act 1975 (Cth)

APPLICANT: Ms Bendall

RESPONDENT: Mr Macgreggor

FILE NUMBER: MLC 7136 of 2009

DATE DELIVERED: 9 December 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 9 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sweeney

SOLICITOR FOR THE APPLICANT: Pearce Webster Dugdales

COUNSEL FOR THE RESPONDENT: NA

SOLICITOR FOR THE RESPONDENT: NA

Orders

1. The husband and wife share the parental responsibility with respect to the children K born … July 1993 and R born … February 1995.

2. The said children live with the wife.

3. All questions of the husband spending time and/or communicating with the children be reserved.

4. All applications pursuant to Part VII of the Family Law Act 1975 be otherwise dismissed.

5. All applications for alteration of property interests pursuant to Part VIII of the said Act be referred to a Conciliation Conference on a date to be advised to the parties.

6. The wife cause a sealed copy of this order to be served on the husband in like manner to that provided by paragraph 3 of the order made on 12 October 2009.

7. Liberty be reserved to the husband to apply to vary or set aside these orders upon application to be filed and served together with any accompanying affidavit within 42 days of service in accordance with paragraph 6 hereof.

8. All questions of costs be reserved.

9. General liberty be reserved to both parties to apply.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7136 of 2009

MS BENDALL

Applicant

And

MR MACGREGGOR

Respondent

REASONS FOR JUDGMENT

1. These proceedings concern the children of the parties:  K, born in July 1993, aged 16; and R, born in February 1995, aged 14.

2. Before turning to the substance of this application, I note that the matter has been undefended.  The husband is living in Asia.  The wife is resident in Australia. 

3. On 12 October 2009, Registrar Mestrovic made orders with respect to service on the husband by electronic means attached by way of a portable document format known as PDF, to an email addressed to the husband.  I am satisfied by an affidavit of Glenn Patrick Stanislaw Hanafin, the wife’s solicitor, sworn on 13 October 2009 and filed on 15 October 2009 that service of all relevant documents and, in particular, the initiating application and affidavit material presently before me have been served in accordance with the Registrar’s order. 

4. The husband has not appeared and in the circumstances I have formed the view that it is in the interests of the children that I proceed with this application.  I am fortified in that view by being able, as I will order, to require the husband to have notice of the orders and reserving him liberty to apply to vary or set them aside.  That will protect his rights before the Court. 

5. The parties are both citizens of the United States of America.  They married in 1990, having cohabitated for a period of some months prior to that.  They were both born in the United States, as were the children.

6. The husband had presently been an employee of the United States military and they had moved on a number of occasions from place to place in support of his career.  They moved to Asia in approximately June 2006.  At that point the husband was a civilian and accepted an overseas assignment from a civilian employer. 

7. The marriage between the parties clearly deteriorated substantially over the next couple of years.  There are disturbing allegations by the wife with regard to significant mood swings by the husband and threats which, at times, were quite serious indeed and may have put the wife and the children in fear of their lives. 

8. The parties separated under the one roof in November 2007 and moved as a family, but the parties remaining separated, to a larger apartment in Asia in March 2008.  Their marital situation continued to deteriorate and the wife swears that she:

   had increasing feelings of being trapped living with my estranged husband and unable to properly move on with my own life.  I was not comfortable inviting my friends over to the apartment because the husband may be there and that situation was very uncomfortable for all concerned.

9. It would appear that the husband formed a relationship with an Asian woman in November 2008.  The wife attempted to engage the husband in discussions to resolve the various issues between them both as to the children and financial matters.  That was not possible. 

10. In the meantime the wife formed a relationship with an Australian lawyer and they propose marrying in the next month or two.  The wife initially came to Australia about 12 months ago and she and the children settled in Melbourne in August 2009.

11. As part of the preparation for this application, the parties were referred to Ms M, who is a psychologist practicing in the area of relationship breakdown.   Ms M’s report, which I have read, satisfies me, together with the affidavit material, that at all relevant times the wife has been the primary carer of and for the children.  The children expressed themselves to Ms M as having been initially upset and saddened by their departure from Asia and, in particular, saddened by the fact that they had lost friends; however, “they were relieved to have fled from their father and that they now felt safe and secure.  Their family circumstances, their life and relationship with their father were characterised by tension and fear.”

12. Ms M proceeds to report on the expressions of views by both children, each of whom is described as being articulate.  They are intelligent children who are well able to assess their life and their preferences as to their circumstances.  It is clear from Ms M’s report that both children are happy to be living in Australia, that they are very pleased to be away from the stresses caused by their relationship with their father and wish to continue living with their mother in Australia.

13. In considering these applications, the best interests of the children are the paramount consideration.  Paramount does not mean sole, but it does mean most important.  I must take into account the object and various principles underlying that object contained in section 60B and I must have regard, in assessing the best interests of the children to which the object and the principles are subject, to the various matters contained in section 60CC of the Act.  There is no need to traverse each of those matters in any detail. 

14. On the basis of my previous findings I am satisfied that the children are articulate, intelligent and able to express their views.  Their views, as expressed to Ms M are abundantly clear and, in all the circumstances, are consistent with the entirety of the material filed on behalf of the wife in support of her application. 

15. Subject to the husband having the opportunity to apply to vary or set aside these orders, in my view it is appropriate that the children live with the wife. In the circumstances, the wife has, to her credit, conceded that the parties should continue to share the joint parental responsibility of and for the children.  In my view that is appropriate, particularly given that there is evidence to suggest that the husband’s time with the children has, on many occasions, been significantly productive and presumably very much in their interests.

16. I am unable to make any orders with respect to matters of sharing time or substantial and significant time but that would be open to the husband to apply to the Court at such time as he may see fit.

17. As far as the financial matters are concerned, counsel for the wife has submitted that it would be appropriate that they be referred to a conciliation conference, with which I agree. 

18. I will order service in like manner to that ordered by the Registrar as referred to earlier in these reasons for judgment.

19. A matter has been raised with respect to the wife’s right to apply for a visa with respect to the children.  The children are, at this stage, on American passports and there is, therefore, no difficulty for them.  In the event that that were to change, an application will need to be made to the Court.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate: 

Date:  17 December 2009