COLES & BROOKES

[2011] FamCA 127

FAMILY COURT OF AUSTRALIA

COLES & BROOKES [2011] FamCA 127

FAMILY LAW – CHILDREN – Application filed very shortly after a final hearing in December 2010 where parenting orders made – Application to relocate considerable distance – Application not filed in accordance with final orders made previously – Application summarily dismissed  

Family Law Act 1975 (Cth): s 60CC

Coles & Brookes [2010] FamCA 1233
Malcolm & Munroe & Anor [2011] FamCAFC 16
Marsden & Winch [2009] FamCAFC 152
Rice & Asplund (1979) FLC 90-725

APPLICANT: Mr Coles

RESPONDENT: Ms Brookes

INDEPENDENT CHILDREN’S LAWYER: Ms B. Smithies, Legal Aid Commission (ACT)

FILE NUMBER: CAC 1641 of 2009

DATE DELIVERED: 3 March 2011

PLACE DELIVERED: Canberra – In Chambers

PLACE HEARD: In Chambers

JUDGMENT OF: Faulks DCJ

HEARING DATE: 23 February 2011 – In Chambers  

REPRESENTATION

COUNSEL FOR THE APPLICANT: No appearance by or on behalf of the applicant – matter considered on the papers in Chambers

SOLICITOR FOR THE APPLICANT: Capon & Hubert

COUNSEL FOR THE RESPONDENT: No appearance by or on behalf of the applicant – matter considered on the papers in Chambers

SOLICITOR FOR THE RESPONDENT: Elizabeth Fleming & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: No appearance by or on behalf of the applicant – matter considered on the papers in Chambers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission (ACT)

Orders

IT IS ORDERED THAT:

1. The Application filed on 22 February 2011 by Mr Coles is summarily dismissed, both as to interim orders sought and final orders sought.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1641 of 2009

Mr Coles

Applicant

And

Ms Brookes

Respondent

REASONS FOR JUDGMENT

1.   I have before me an Initiating Application filed on 22 February 2011 by the father, Mr Coles, seeking orders, inter alia, for the relocation of a child to an area which is approximately 615 kilometres away from where the parents of the child presently reside.  The mother of the child is Ms Brookes.

2.   This Initiating Application is filed in circumstances where a final hearing took place in December 2010.  On 17 December 2010 at the end of a long history of litigation between the mother and the father of N (‘the child’), born … May 1997, I made certain parenting orders to resolve a conflict about where the child was to spend most of his time and the arrangements for the time that he would spend with the other parent: see Coles & Brookes [2010] FamCA 1233.

3.   On 17 December 2010, I made Orders 16 as follows:

16.The Independent Children’s Lawyer, Ms Smithies, will communicate with the child as soon as possible and discuss with him the terms of the Orders that have been made and to provide to him in due course a copy of my Judgment in these proceedings when it is settled.

4.   It appears from the material filed by the husband that this has not occurred although there is no obvious reason for that. 

5.   I also made the following Order 18:

18.Neither parent may hereafter file and serve any further application in relation to the child without such application being accompanied by an affidavit setting out the evidence upon which the application is to be based and causing such application to be filed (without service on the other party) at first instance in the Court for determination by a Judge of the Family Court of Australia sitting in Chambers about whether the application should be summarily dismissed as failing properly to be supported by the evidence filed in conjunction with the application, or may direct that the application be filed and served on the other party, and list it accordingly.

a)In particular, the father will not file a further application for relocation from the South Coast district of New South Wales on or before 1 November 2011 and will then, if he should choose to do so, do so only in accordance with the procedures outlined in these orders.

6.   No appeal was filed by either party against the Orders made on 17 December 2010.  The time limited for the further Application by the applicant father for relocation as outlined above has not yet expired.  For that reason alone his application should be summarily dismissed.

7.   Beyond that significant factor, however, if I consider the material raised in the Affidavit filed by the father on 22 February 2011, it appears that there may be problems with the way in which each of the parties interpret or implement the Orders that I have made.  These are matters for Contravention Applications or a proper Application setting out what Orders should be sought instead of those.  It would be appropriate in any event that they should be the subject of discussion in accordance with a Family Law Dispute Resolution Practitioner (or a Family Relationships Centre). 

8.   In the ordinary course of events, it is possible that the inability of the father to obtain appropriate accommodation may constitute a ground for re-opening proceedings: see Rice & Asplund (1979) FLC 90-725, 78,905 per Evatt CJ. I am also mindful, however, of what the Full Court of the Family Court of Australia (Bryant CJ, Finn & Cronin JJ) said in Marsden & Winch [2009] FamCAFC 152, where their Honours relevantly stated (at [50]):

[50] Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made.  Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case.  How is that decision to be made?  The court must look at:

1.   The past circumstances, including the reasons for the decision and the evidence upon which it was based.

2.   Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.

3.   If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself.  Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation. 

9.   In the context of paragraphs 14 and following of the father’s Affidavit, it appears that this relates more to his proposed relocation to northern New South Wales and his possible employment there. 

10. As appears from Annexure “D1” to the father’s Affidavit, this was a position that he had applied for prior to the finalisation of the proceedings concluded in December 2010.  His failure to disclose this during the previous proceedings represents, in my view, a lack of candour with the Court which is to be condemned. 

11. The proceedings in December 2010 were conducted on the basis that it was the father’s case that for the advancement of the child’s potential football career he should move to Canberra or to Sydney.  As it was pointed out in my Reasons for Judgment the information about where the father would live, what employment he would undertake and how the child’s football career would be enhanced by the proposed moves was lacking.  No reference was made in the course of evidence to any proposed move to northern New South Wales or how that might affect the (assertedly) crucial importance of the child’s football career.  I should properly have this information before me in evidence: see Malcolm & Munroe & Anor [2011] FamCAFC 16, [83] (per Faulks DCJ & Crisford J).

12. The present material filed provides no information of substance relating to how the child’s football career might be further enhanced by a move to northern New South Wales and this now seems to have diminished in importance by comparison (perhaps logically) with the father’s need for affordable accommodation and employment. I also take judicial notice of the fact that there is a travelling distance of 615km between the town proposed in northern New South Wales and the current location in the South Coast district of New South Wales.  This significant distance and how the needs of the child being able to maintain a meaningful relationship with both his parents if he were permitted to move has not been addressed in the supporting material.  

13. These are no doubt important matters but are matters which do not alter the fact that the parties having been in significant litigious dispute for some time and have been the recipients of a formal judicial determination in December 2010.  The matters the subject of the judgment and finally of the particular Orders made remain.

14. Taking account of the matter set out in s 60CC of the Family Law Act 1975 (Cth) both primary and additional, there is no basis upon which the evidence advanced would permit me to properly re-open the litigation between the parties and accordingly in conformity with the determination I made previously. The Initiating Application is accordingly dismissed summarily.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 3 March 2011.

Senior Legal Associate:

Date: 3 March 2011