Cole and Wilkes (No.2)
[2009] FMCAfam 880
•7 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| COLE & WILKES (No.2) | [2009] FMCAfam 880 |
| FAMILY LAW – Parenting – interim relocation. |
| Family Law Act 1975, s.60CC |
| C and S [1998] FamCA 66 Goode & Goode (2006) FLC 93-286 Morgan & Miles [2007] FamCA 1230 |
| Applicant: | MR COLE |
| Respondent: | MS WILKES |
| File Number: | SYC 2966 of 2009 |
| Judgment of: | Altobelli FM |
| Hearing date: | 5 August 2009 |
| Date of Last Submission: | 5 August 2009 |
| Delivered at: | Sydney |
| Delivered on: | 7 August 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Messner |
| Solicitors for the Applicant: | Abrams Turner Whelan Family Lawyers |
| Counsel for the Respondent: | Mr Batey |
| Solicitors for the Respondent: | Delaney Lawyers |
THE COURT ORDERS PENDING FURTHER ORDER THAT:
The mother’s application to relocate to [P] with [X] is refused.
THE COURT NOTES:
The father’s offer made in Court on 5 August 2009 through his counsel that he will provide the following to the mother by way of gift and on the following conditions:
(a)If the maternal grandmother does relocate from [K] to [P], and the mother chooses to rent alternate accommodation in [K], the father will provide to the mother an amount of money equivalent to the bond and the first 4 weeks rental on the said accommodation calculated at an amount no greater than $250 per week;
(b)If the maternal grandmother does relocate from [K] to [P], and the mother chooses to rent alternate accommodation in Sydney, the father will provide to the mother an amount of money equal to the bond and first 4 weeks rental on the said accommodation calculated at no greater than $300 per week. In addition the father will provide to the mother a further $130 per week as soon as his current lease in [K] expires or he is able to terminate same.
THE COURT FURTHER ORDERS THAT:
The matter be adjourned to 21 December 2009 at 10.00am for a
two day final hearing.
Each party file and serve any affidavits on which they intend to rely by no later than 1 December 2009. No further affidavits to be filed after that date without leave of this Court.
The Applicant pay the hearing fee or obtain a waiver of that fee by no later than 1 December 2009.
No later than two (2) working days prior to hearing each party forward to my Associate a document setting out:
(a)The affidavits on which each party will rely at hearing; and
(b)The Orders sought at hearing.
The parties have liberty to apply on 7 days notice.
IT IS NOTED that publication of this judgment under the pseudonym Cole & Wilkes is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2966 of 2009
| MR COLE |
Applicant
And
| MS WILKES |
Respondent
REASONS FOR JUDGMENT
(Ex tempore)
I provide the following ex tempore reasons in the matter of Cole & Wilkes. The first thing I want to state openly is that these decisions are never ever easy to make and this one in particular was a difficult decision to make. On 13 June, I made interim parenting orders and provided some ex tempore reasons in this matter. I intend to have those reasons formally taken out and made available to the parents, but for present purposes, I incorporate the same into these reasons. Particularly I adopt the statements of introduction, background and discussion of the issues.
On 10 June, the mother undertook that she would not permanently relocate the child to [P], and she is now seeking, in effect, to be discharged of that undertaking and for orders to be made on an interim basis in accordance with her response filed 9 June, the effect of which would be that she be permitted to relocate [X] to [P], and the father to have contact as set out therein, that is for four hours on Saturday and Sunday each alternate weekend.
The father opposes these orders and, if I have understood it correctly, seeks to maintain the current level of contact with [X], that is each weekend, whether that be in Sydney or in [K]. I note that the case has evolved from being an interim parenting case to be decided along Goode & Goode [2006] FamCA 1346 principles, to an interim relocation case. That which was foreshadowed in the earlier application and in respect of which I granted leave, has crystallised, namely that the mother asserts that as a result of the maternal grandmother selling her home in [K], the mother and [X] will lose their accommodation, as well as the emotional and practical support provided by the maternal grandmother.
I note a number of important things before proceeding further. Firstly, I have ordered a family report and there is a delay in obtaining that, and that is simply a product of the unavailability of the resources to meet the need in cases. Next, I have managed to find some hearing dates and I am going to set this matter down for hearing on 21 December at 10am for two days. I’ll make a direction for the parties to file and serve all evidence on which they intend to rely, no later than 1 December 2009. The hearing fees should be paid on that date or a waiver thereof sought.
According to the maternal grandmother, settlement of the sale of her property is to occur on or about 11 September 2009, and that is simply material that’s extrapolated from her affidavit. I note that the father has made an offer, all of which is expressed in terms of it being a gift to the mother, that if she remains in [K], he will pay her bond on rented accommodation and four weeks rental on the basis of not more than $250 per week. And, then, if the mother chooses to move to Sydney, the offer is bond and four weeks rental for not greater than $300 per week. In addition, once his lease in [K] is either ended or terminated, to pay the equivalent of what he is paying in rental there, also, to the mother.
Now, there is no evidence before me of plans by the maternal grandmother to move to a specific place in [P]. There are unspecific assertions about renting. The grandmother’s affidavit of 13 July is made over three weeks after exchange of contracts, and I must say I’m surprised by the absence of specific details.
This means the mother can make no firm proposal about contact. For example, I don’t know where in [P] she will be living, and whether it will be in [P] or in the broader area. I don’t know how close that will be to the airport. I don’t know what accommodation there will be, either for her, for [X] or for the father, in fact, should he have contact up there. Ms Messner, counsel for the father, submitted that an inference was available and that is that the maternal grandmother may, in fact, be willing to continue to support the mother in [K] for a further period.
I must say, the totality of the evidence before me, leads me to agree that it is an inference available to me. The fact is, the grandmother has been very supportive of the mother and [X], in terms of accommodation and emotional support. It’s possible, I can put it no higher than that, that she might extend that for another period of months until the final hearing. Again, I note that all of this stems from the absence of evidence that I would have expected to see about where specifically she would be living in [P].
The next point I make is that it is clear that the mother is not actually working and appears, on her own evidence, not to have worked since the birth of [X]. Now, the significance of this is that it undermines any submission that was made on her behalf by her counsel to the effect that she needs to have the maternal grandmother proximate to care for [X] while she is working. I accept that on one scenario the grandmother would leave [K] and the mother would be left on her own and might have to return to work to provide for herself financially, and, thus, would also face the prospect of finding childcare. Nonetheless, I am sceptical, on the evidence, whether the grandmother will, in fact, leave [K] before the final hearing.
The next point is I accept the evidence of both the mother and the maternal grandmother that the mother does receive continuing emotional and financial support from the grandmother, and the latter is by way of provision of accommodation. I note that the mother makes no complaint about existing contact arrangements and the father speaks of the development of his relationship with [X] in glowing terms. Therefore, there is no reason relating to [X] directly that warrants a change, either in her location or in the frequency of contact with the father.
The mother’s case is that she would suffer emotional and financial strain if, firstly, her mother does in fact move to [P] prior to the final hearing, and, secondly, if she is not permitted to relocate as well, and I accept that this would have an impact on [X] in that way.
There is no issue that there is accommodation in [K] which is appropriate. Both parents refer to this in their affidavits. I prefer the father’s evidence because he provides corroborating evidence about the availability of accommodation and the cost of it, and this suggests to me that the father’s offer of assistance calculated at $250 per week is adequate.
I thought it unusual that the mother provided me with such unspecific evidence about her finances in a case where she asserts it was one reason why she should be allowed to relocate [X]. Now, for example, one has regard to the ambiguous evidence about her finances, at paragraphs 14 and 21 of her affidavit on 13 July. She is in receipt of a supporting parent’s benefit. I am prepared to infer that if what she tells the court about her finances is correct, and if the maternal grandmother in fact moves out of [K], then the mother would receive rental assistance from Centrelink.
She currently receives child support at $87 per week and the father expects this will increase to $157 per week. I accept that if this is correct there may be a reduction in Centrelink benefits. But I don’t think that the financial strain to which the mother refers is unmanageable for the relatively short period to a final hearing, particularly in view of the offer of the father’s assistance. It is not inevitable or a foregone conclusion that the mother will actually need to find work.
I don’t accept Mr Batey’s submission about meaningful relationship, and that it actually assists me in deciding this case. He referred me to two recent Full Court decisions on international relocation, at least one of which could be interpreted to define meaningful relationship in a way that would support his submission that there would continue to be a meaningful relationship between [X] and her father, even on the mother’s proposal. What is a meaningful relationship depends on the circumstances of each case.
Here, [X] is 18 months old, younger than any of the children in either of the cases referred to. Here, there is already a meaningful relationship on the evidence that is before me. In any event, these are interim proceedings, not final ones. It may well be that the cases referred to will be of much greater assistance to the mother at the final hearing, but not in the present context.
I suggest that a more useful authority in the present context is the Full Court’s decision in Morgan & Miles [2007] FamCA 1230. In particular, I incorporate into these, my ex tempore reasons, the following paragraphs from the Full Court’s decision. Firstly, paragraph 27, where the Full Court refers to an earlier Full Court judgment in C and S [1998] FamCA 66. Secondly, paragraphs 82 to 88, inclusive, of the Full Court’s decision. Ultimately, even this decision is one that’s based on the best interests of the child, [X], and section 60CC provides a useful framework for discussing that.
Paragraph (a) of subsection 2 leads me to be concerned that a reduction in time, for a child of [X]’s age, and her developmental stage, leads to the risk of undermining her meaningful relationship with her father. The mother’s proposal is of concern in this regard, whereas the father’s proposal of maintaining the existing situation is preferable. There are no issues under paragraphs 2(b) or 3(a). But at paragraph 3(b) there is a good relationship all round between [X], the parents and the others around her. But the mother’s proposal reduces the father’s contact, and as I have indicated, jeopardises that relationship. In paragraph 3(c) there are no issues at an interim hearing.
Paragraph 3(d), the mother’s proposal presents the greatest change for [X], especially separation from the father and the reduction in the frequency of contact. The primary concern here is not necessarily the physical changes for her, but the emotional changes in terms of her relationship with her father. Paragraph (e) deals with issues of practical difficulty and expense, and these issues are bound on both proposals, but on balance I am satisfied that the father’s proposal, together with his financial offers, mean that they are more practicable than the mother’s proposal and actually achieves what is reasonable practicable, as defined in section 60CC(3)(e). I think the mother’s proposal for the father’s contact is impractical, especially in circumstances where she is unable to be specific about where she will live.
There are no issues about paragraph (f), that is capacity, at an interim hearing, and I am satisfied there are no issues under paragraphs (g) to (m) in the context of an interim hearing. Thus, on balance, I think the section 60CC considerations consistent with the matters referred to in Morgan & Miles mean that the father’s proposal is to be preferred. This means that I can’t allow the mother to relocate [X] for the time being.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate: Anthony Thompson
Date: 19 August 2009
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