Burton and Tenant

[2011] FamCA 788

FAMILY COURT OF AUSTRALIA

BURTON & TENANT [2011] FamCA 788

FAMILY LAW – SUPPLEMENTARY REASONS FOR JUDGMENT;  Original judgment published 7 October 2011

Family Law Act 1975 (Cth)

APPLICANT: Ms Burton

RESPONDENT: Ms Tenant

FILE NUMBER: MLC 6710 of 2007

DATE DELIVERED: 11 October 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: By way of written submissions

SUBMISSIONS RECEIVED FROM

SOLICITOR FOR THE APPLICANT: Julie Taylor

SOLICITOR FOR THE RESPONDENT: Tolhurst Druce & Emmerson

Orders

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6710  of 2007

Ms Burton

Applicant

And

Ms Tenant

Respondent

SUPPLEMENTARY REASONS FOR JUDGMENT

1. These are supplementary reasons to those that I published on 7 October 2011.

2. In publishing the reasons, I said that I had not received a response from the respondent. That was incorrect. The submission of the respondent was filed on time and properly as ordered however, it was misplaced by me and was not attached to the Court file. I was not aware that it had been filed.

3. I found the document on 10 October 2011 and have now read it.

4. Because this is an interlocutory, if not administrative matter, no prejudice has been caused to the respondent.

5. The respondent opposed the Court granting an expedited first day before a judge. Her position was succinctly set out in the submission. It was that there is an “assumption” that the Court will make an order that B will live with the applicant in the country based on an assumption that there is some priority in a birth mother. I did not read the applicant’s submission that way and even if it was so intended, that is not the basis upon which I would give this case any priority over other cases.

6. The submission went on to say that the child is well settled both in the respondent’s home and at her school. The respondent criticised the applicant for taking the child to the C Region home on weekends whilst also acknowledging that there are no court orders about that. People and in particular children, do not live in a vacuum and life is ever-changing for many in the community. In separated families, the various incidences of parental responsibility for children are things which the law expects parents to resolve. It is only where an impasse arises that the Court is expected to step in. This is obviously one of those situations where one parent wishes to alter a child’s lifestyle in part, but not only, because of her own desires. That also is not something unusual or normally to be criticised.

7. It is clear therefore that there is an impasse between the parents. It is clear that the proposed relocation of the child requires a court to step in to decide which proposal best suits her future needs. It would appear from the submissions of the respondent that she seeks to alter the current arrangement as well if the applicant proposes to move to C Region including on an interim basis.

8. The child is therefore caught in an impasse between her parents’ desires. Whilst that no doubt occurs for many children, the applicant’s proposal here is a significant relocation. The Court has always endeavoured to hear that cases expeditiously. In this case, the orders I made do not guarantee a final trial before the start of the 2012 school year.

9. The respondent’s submissions pointed to the statement of psychologist Mr D but that simply pointed to what many children expect of loving parents. Nothing turns on that issue.

10. The respondent referred to the involvement of the applicant with a new partner and issues there of sexual identity. Unless there is some suggestion (which I did not see) that the applicant is inappropriately and irresponsibly bringing the child into contact with a new partner, it is hard to see how that is a basis to not have the matter heard. The protection of children is a parental responsibility.

11. I have not been moved to alter the orders I earlier made. There is no obvious prejudice to the respondent and certainly none was claimed.

12. Because of the brewing impasse between the parents, this is a case where the Court should list the matter for a first day before a judge. The parties can then advise just what issues are to be determined and what evidence will support their contentions.

I certify that the preceding Twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 11 October 2011.

Associate: 

Date:  11 October 2011