Cade and Partington

[2007] FamCA 175

FAMILY COURT OF AUSTRALIA

CADE & PARTINGTON [2007] FamCA 175

FAMILY LAW – CHILDREN – Relocation – Interim - Return of children

APPLICANT: MR CADE

RESPONDENT: MS PARTINGTON

FILE NUMBER: HBF 1989 of 2004

DATE DELIVERED: 26 February 2007

PLACE DELIVERED: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 26 February 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Trezise

SOLICITOR FOR THE RESPONDENT: Mr Foster

INDEPENDENT CHILDRENS LAWYER Mrs Mollross

Orders

1. THAT the mother return F born in December 1999 and C born in April 2001 (“the children”) to Tasmania on or before Wednesday 7 March 2007.

2. THAT the children spend time with the father on supervised terms at the H Children’s Contact Service at such time as the co-ordinator of the service may direct.

3. THAT pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

4. THAT the mother must:-

   (a)

   contact the H Children’s Contact Service by 5.00pm Friday

   
   

   2 March 2007 to arrange an appointment for the assessment of her suitability to use the facilities of this service;

   (b)attend the assessment and any further appointments scheduled for her by the service;

   (c)comply with all reasonable rules of the service and comply with all reasonable requests or directions made by staff at the service.

   IT IS DIRECTED

5. THAT both parties contact the Family Consultants to make appointments for the preparation of the family report previously ordered.

   IT IS FURTHER ORDERED

6. THAT the parties attend at those appointments made for them with the Family Consultant

7. THAT costs be reserved.

   IT IS NOTED

8. THAT the question of the interim relocation of the mother to New South Wales has not at this stage been determined on its merits.

   IT IS CERTIFIED

9. THAT pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBF 1989  of 2004

MR CADE

Applicant

And

MS PARTINGTON

Respondent

REASONS FOR JUDGMENT

1. This is an application by the father for orders that the mother return the children F born in December 1999 and C born in April 2001 (“the children”) to Tasmania on or before Wednesday, 7 March 2007 and consequential orders that the children spend time with their father through the H Children's Contact Service.

2. That order is supported by the independent children's lawyer but opposed by the mother.  The mother seeks orders that the father see the children at either the N, New South Wales, or W, New South Wales, contact service.

3. The parties seem to be in agreement with regard to much of the history in relation to this matter.  Both parties were born in 1976 which makes them aged 30.  They commenced cohabitation, I believe, in 1995.  There is an issue about separation where the mother says the parties separated in November 2004 and the father said they separated in December 2004.  In terms of the issues before me today, not much swings on that.

4. As I indicated, there are two children of the marriage, and there is no issue that the mother has been and continues to be the principle carer of the children.  It seems, and it has not been argued to the contrary, that the mother moved to New South Wales in 2005, and on 12 January 2005 his Honour made an order requiring the children to be returned to Tasmania and to reside in Tasmania from that time and that neither party remove the children from Tasmania.

5. There appears that there was some form of attempted reconciliation subsequent to those orders and then some disclosures were made to the mother and these proceedings recommenced in March of last year.  At that time there were pending criminal proceedings against the father arising out of the alleged disclosures by the children.  I determined that this case could not be heard until such time as those criminal proceedings were dealt with.  I am told that the Director of Public Prosecutions, Tasmania, directed a no bill of those proceedings on 4 December 2007.

6. A report has been prepared by Dr A, and it is common ground with all parties that there should be a restoration of supervised time that the children spend with the father at this time.

7. The mother sent a letter to the father through her solicitor in December 2006 discussing the possibility of relocation.  The mother then went to New South Wales in late December 2006 or early January 2007 for a holiday.  She has formed a new relationship and has planned to remarry.  It is submitted from the bar table that is to occur on this coming Saturday.

8. Dr A's view is that the contact should be restored on the supervised basis and submissions on the part of the father was that they only found out about the relocation some three weeks ago.  A letter was tendered by his solicitors dated 5 February 2007 where he indicated he would be seeking return of the children in accordance with the order of his Honour Hannon J.

9. Mr Foster, on behalf of the mother, ran through the issues set out in the mother's affidavit, in particular, the reasons why she should be allowed to relocate, namely her marriage, the fact that the children are settled, and that the mother has signed a lease in New South Wales.

10. There is an order of this court that the parties remain in Tasmania.  The mother has relocated by stealth and the effect of that has been significant in that a number of appointments for a preparation of a family report have been lost.  The ability for the children to spend time with their father in accordance with the recommendations of the court appointed expert has been limited, if not lost, and all this arises as a consequence of a unilateral decision made by the mother in January of this year without reference to the father, and for that matter, without reference to and contrary to the views of the lawyer for the children.

11. I make it clear in these reasons that I have not determined on an interim basis whether the mother ought to relocate.  I make it clear that it is open to the mother to make such an application at some time in the future, but in the meantime she ought to comply by the orders of this court and be back here with the children, and it seems to me, after considering all the submissions, taking into account all of the factors under section 60CC, that the orders sought by the father are appropriate.

I certify that the preceding 11 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin

Associate: 

Date:   26 February 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as CADE & PARTINGTON