Depit and Depit

[2010] FamCA 157

FAMILY COURT OF AUSTRALIA

DEPIT & DEPIT [2010] FamCA 157

FAMILY LAW  -  CHILDREN  -  relocation  -  interim orders  -  breach of order restraining relocation of child -  breach of order restraining removal of child from current school  -  trial fixed for May 2010  -  child to be returned  -  interim parenting orders

Family Law Act 1975 (Cth) ss 11F, 60B(1), 60CC(1), 61DA, 65DAA(1) and (2)
Federal Magistrates’ Act 1999 (Cth) s 39

U & U (2002) 29 FamLR 74
Taylor & Barker (2007) FLC 93-345
Sampson & Hartnett (No.10) (2007) FLC 93-350
Starr & Duggan [2009] FamCAFC 115
McCall v Clark (2009) FLC 93-405
Rosa & Rosa [2009] FamCACF 81

HUSBAND: Mr Depit

WIFE: Ms Depit

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 2088 of 2007

DATE DELIVERED: 18 February 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 18 February 2010

REPRESENTATION

THE HUSBAND:	In person
THE WIFE:	In person

INDEPENDENT CHILDREN’S LAWYER Forster & Associates

Orders

1. That the wife or her nominee do all things reasonably necessary to deliver the child of the marriage K born … July, 1994 to the husband’s home at D in the southern Peninsula region in the State of Victoria on Sunday 28 February, 2010 at 5:00 pm. or such other time on that day as they agree. 

2. That the child live with the husband from 5:00 pm. (or such other time as is agreed) on 28 February, 2010 until the commencement of the school day at N School on Monday 1 March, 2010 and the husband and wife do all things reasonably necessary to ensure the child attends N School at the commencement of the school day on 1 March, 2010 and that the child remains at the school for the whole of that school day and the school days thereafter and remains enrolled at N School, until further order. 

3. That if the wife returns to reside at D or such other place in the vicinity which would enable the child to attend N School (“its environs”), then from the date on which she takes up such residence, the child shall live with the husband as provided in paragraph (5) of the orders made herein on 15 August, 2001 and live with the wife at all other times, until further order. 

4. That until the day (if any) on which the wife commences to reside at D or its environs, and until further order, the child live with the husband and spend time with the wife as follows :

   (a)from 9:00 am. or such other time as the parties agree on 27 March, 2010, until 6:00 pm. or such other time as the parties agree, on 10 April, 2010;

   (b)during the school holidays at the end of the second and third school term holidays in 2010, from 9:00 am. or such other time as the parties agree on the first Saturday, until 6:00 pm. or such other time as the parties agree on the last Saturday;

   (c)at such other times as the parties agree. 

5. That if the wife wishes the child’s time with her pursuant to paragraphs(4)(a) and (b) hereof to occur at H on the New South Wales north coast, then the wife shall be responsible for the cost of plane tickets for the child and the costs of all other necessary travel, save that the husband or his nominee shall :

   (a)deliver the child to the airport no later than one hour prior to her flight to Ballina or Lismore or such other airport to which the child is flying;  and

   (b)collect the child from the airport on her return from time with the wife at H; 

   and to facilitate these arrangements, the wife shall provide the husband with a copy of the child’s itinerary no later than fourteen days prior to the date on which she will depart for H.

6. That pursuant to s.62G(2) of the Family Law Act 1975 a family report be prepared and released by 27 April, 2010 and IT IS REQUESTED  that Ms. L is allocated to prepare the family report and that in it she reports on :

   (a)the child’s relationship with both parents and members of her extended family and (to the extent possible) friends;

   (b)the implications for the child of a move to live at H including, but not limited to, implications on her relationship with both parents, members of their extended families and friends; 

   (c)the child’s emotional development and maturity and their impact on :

   (i)her ability to make an informed decision about relocation to H;  and

   (ii)her understanding of the long-term consequences of such a move; 

   (d)the child’s views about relocation to H and her living arrangements;  and

   (e)the parents’ understanding of parental responsibility and ability to separate his/her needs from those of the child. 

7. That on or before 19 March, 2010 the wife file and serve an amended application, setting out with specificity the final parenting orders sought in respect of the child and any orders sought which relate to child support for the child. 

8. That on or before 2 April, 2010 the husband file and serve an amended response, responding to the amended application filed by the wife pursuant to paragraph (7) hereof and setting out with specificity the final parenting orders sought in respect of the child and any orders sought which relate to child support for the child. 

9. That each of the parties file and serve all affidavit material on which they intend on or before 11 May, 2010. 

10. That each of the parties file and serve a statement of financial circumstances on or before 11 May, 2010. 

11. That the competing applications for parenting orders and orders relating to child support be fixed for trial before the Honourable Justice Bennett at 10:00 am. on 17 May, 2010, subject to :

    (a)a part heard case;  and

    (b)any subsequent order made by the trial judge. 

12. That the reasons for judgment this day be transcribed and copies made available to the parties. 

13. That a transcript of the hearing this day, including the evidence of Ms. L, be obtained and a copy provided to the parties. 

14. That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, 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 document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

15. That 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 Depit & Depit is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2088 of 2007

MR DEPIT

Husband

And

MS DEPIT

Wife

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This matter concerns the parties’ youngest daughter, K, who was born in July 1994.  She is thus 15 and a half.  She has three older siblings.  When this round of proceedings commenced, the parties’ daughter, J, was not yet 18, having been born in February 1992.  J turned 18 this month.  The two older children are W, born in July, 1986 and S, born in March, 1989. 

2. Amongst the material before the court is recent material from the mother’s Facebook site, in which she refers to J and S being “off to England” and to W, also an adult, “heading back to the city”.

3. The father’s evidence is that S is doing third year university studies in Melbourne.  She has won a scholarship to Oxford and will be leaving later in the year to undertake those studies.  J is living with him at D, and plans some overseas travel in April of this year.  W, who has been living at D, has just moved, or is about to move, to Melbourne, where he has obtained some employment.  

4. The parties have been involved in earlier litigation.  The original file carries a 1999 date, being file MLF 10809.  It is being brought from the archives but is not before me today. 

5. On 15 August, 2001 Guest J. made final parenting orders, by consent.  Both parties were legally represented.  The orders provided for the father and mother to have joint responsibility for the long term care, welfare and development of their four children.  The children were to live with the father on each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday, or Tuesday if the Monday were a public holiday;  on each alternate Wednesday until 7:45 pm. and, from 29 August, 2001, until the commencement of school on Thursday morning;  and for one half of all school term vacation periods.  Orders provided for periods of time with both parents on Christmas Day and during the summer vacation.  The children were to reside with the mother at all other times.  The mother was restrained, until further order, from removing the children from their current schools, save to enrol J and K at N School for the commencement of Year 7.  The order noted that the parties had entered into a child support agreement which effected a compromise of the mother’s form 63 application filed on 24 July, 2001.  These substantive orders remain on foot. 

6. The file before me commenced with a contravention application filed by the mother on 23 February 2007.  Those matters concluded with orders made in the Federal Magistrates Court. 

7. The wife filed an initiating application in the Federal Magistrates’ Court on 10 November, 2009 which was given a return date of 15 December, 2009.  The same day she filed three affidavits sworn by her.  The first was sworn on 11 June, 2009.  The body of the affidavit is contained in nine unnumbered pages and numerous annexures;  some annexures contain several documents.  The annexures are as follows :  *

   AD 1 a)Letter from the wife to the enforcement officer of the Child Support Agency, dated 2 August, 2008 to which was attached :

   (i)       annexure A to the child support agreement;

   (ii)hand written letter from the husband to the wife about J’s dental work dated 18 July, 2008;

   (iii)letter to the wife from Mr. M, Oral and Maxillofacial surgeon dated 1 August, 2008;

   (iv)letter from Dr. R, orthodontist to Dr. T, dental surgeon, dated 17 April, 2008;

   (v)      fee schedule for Mr. M’s fees;

   (vi)letter addressed To Whom It May Concern from Dr. R dated 7 August, 2008;

   (vii)letter from Dr. R to Dr. T, dated 17 April, 2008;

   (viii)letter from Dr. R to Dr. T, dated 1 February, 2008;

   AD 1 b)Letter from the husband to the wife in relation to J’s dental work dated 18 July, 2008;  this letter formed part of ADI a.

   AD 1 c)Letter from the Child Support Agency to the wife dated 19 November, 2008. 

   AD 1 d)Letter from the wife to the husband dated 11 March, 2007 in which she sought to amend orders to allow for the children to move to the city for better opportunities and more economic benefits.

   AD 1 e)Letter from the husband to the wife dated 4 May, 2007 rejecting the proposed changes to the parenting orders. 

   AD 1 f)(i)       Title particulars relating to Certificate of Title Volume …, folio 953.

   (ii)      Title plan in respect of the same land.

   (iii)Copy transfer of land dated 1 May, 2008 in respect of the same land and two other pieces of real property described in Volume … folio 689 and Volume … folio 560. 

   (iv)ASIC search relating to AT Pty. Ltd.

8. The second affidavit filed on 10 November was also sworn on 11 June, 2009.  In paragraph (1) the wife deposed to making the further affidavit “to exhibit recent examples of the father of the children, [Mr Depit’s] resistance to pay for his daughter’s wisdom teeth and his lack of communication generally”. 

9. The third affidavit was sworn by the wife on 9 November, 2009.  In the second paragraph the wife deposed that she made it as circumstances had changed since the affidavit of 11 June, 2009 was sworn.  That document, too, had numerous annexures as follows :  *

   AD 1A handwritten document containing 16 numbered paragraphs in which the wife set out the reasons she should be allowed to relocate K’s residence to H on the New South Wales north coast.

   AD 2Letter from the wife to the husband dated 22 September, 2009 as described as being about a “Request for consent to cancel children’s orders”, as well as matters referrable to netball fees and orthodontic costs. 

   AD 3A two-page handwritten document containing ten numbered paragraphs relating to “actions causing emotional issues in children”.

   AD 4A four-page handwritten document containing five numbered paragraphs said to illustrate “consequence of actions of father on children” and another two pages containing three numbered paragraphs relating to “lack of supervision / willingness to co-operate to discipline or set boundaries of consistency for children”. 

   AD 5One page email from the wife to the Berwick Family Relationship Centre dated 2 September, 2009 complaining about the scheduling of sessions and the Family Court and setting out her intention to breach the existing orders. 

   AD 5(Second annexure with this number)  Email from the wife to the Berry Family Relationship Centre, dated 2 September, 2009, including three pages in addition to the one page annexed earlier.    

   AD 6Another email from the wife to the Berwick Family Relationship Centre complaining about the handling of the counselling, dated 29 October, 2009. 

   AD 7Three page handwritten document containing six numbered paragraphs under the heading “Actions regarding child support and financial unfairness.

   AD 8Typed schedule of the miles the wife currently travelled for work engagements and sporting commitments. 

   AD 9Medicare benefit tax statement in the name of the wife dated 29 August, 2008. 

10. In the application filed on 10 November, 2009 the mother sought that the orders of 15 August 2001, to which I have referred, be discharged as from 15 December 2009, being the end of the school year.  She sought that the parties have joint parental responsibility for J and K, that the children live with the mother and that the mother be permitted to relocate from D.  She sought that the time K spent with the father be decided by K from 15 December 2009.  She also sought enforcement of a child support agreement, the return of K’s passport and that the child support agreement be quashed and the father be ordered to pay appropriate child support. 

11. The mother’s attitude to the court and its orders is clear from an email she annexed to the affidavit sworn by her on 9 November, 2009.  The email is addressed to the Berwick Family Relationship Centre.  The court had earlier advised the mother of mandatory provisions relating to pre-filing counselling.  In that email the mother complained about being “so very unhappy” about having to undertake counselling, as her daughter’s wishes were “already decided so that no matter what orders are made she is free to stay with the parent of her choice”.  She wrote that the Family Court has never looked after the interests of the children fairly or equally and has certainly not protected her interests in any part of her divorce and legal proceedings.  She continued:

    I am trying to bring the action to do things lawfully correct but again the system is going to disadvantage myself and my child if I cannot get the current orders lifted by the end of 2009.  As it is now I will not even have a court hearing by then or possibly the joint counselling. 

    I will have no choice but simply to relocate at the end of the year anyway and I will produce my affidavit material ready for court in July and this email in my defence as clearly the current orders are out of date, unfair and invasive to my rights and wishes of my one remaining child.

    I have practised as a lawyer and my experiences of the workings of the Family court and delays and the inability of courts and judges to look behind the rich corporate fathers who actually use the law loopholes to avoid responsibility to their children (they hide behind corporate structures, trusts and companies for financial misrepresentations.)  Has made be ashamed of the legal system.  I have seen it in my case and many many other women who are destroyed financially and emotionally by the games that these men play. 

    If there is no court action by the end of this year I will simply move to where my daughter is happy and face Breach proceedings which I would hope would be dismissed in the circumstances while I have truly tried to do things the correct way.

    My legal documents have been sitting awaiting issuing since July. 

12. The mother’s application came before the Federal Magistrates’ Court on 14 December 2009, soon after the initiating application was filed.  On that day, the father was represented.  The mother was not.  The court made a number of orders, most of which were directed to a trial to commence on 21 May 2010.  The parties were to file and serve affidavits by 7 May.  They were to attend upon a child psychologist to be agreed, and in default of agreement, as appointed by the court, to prepare a report as to the issue of relocation to H in New South Wales, with the cost of that report to be shared equally.  The order provided that “if the wife is unable to pay, then the husband is to pay”

13. Importantly, paragraph 4 of the orders of 14 December, 2009 provided that, until the trial date, the wife be restrained from moving the child, K, from the D area.  That order is contained in a minute of orders attached to his Honour’s reasons, but it is also paragraph 4 on the first page of the orders.  There is a warning on that front page, above the signature of the Federal Magistrate;  it records that the applicant wife was warned that a breach of these orders, in particular a breach of order four, may result in the imposition of a fine or imprisonment, or both. 

14. On 5 January, 2010 the wife filed an application in a case.  The cover page is marked in handwriting “Urgent speedy hearing application”.  The registrar who authorised the filing noted on that coversheet that it was issued in relation to paragraphs 2, 5, 7 and 8 only as the other paragraphs amounted to an appeal against the orders made on 14 December, 2009.  With that application the mother filed another affidavit, sworn on 22 December, 2009.  It, too, has numerous attachments, as follows :  *

    AD 1(i)       Letter from the wife to the Federal Magistrates’ Court dated 17 June, 2009 seeking to file an application, two affidavits and a financial statement.

    (ii)Letter from the Federal Magistrates’ Court to the wife dated 25 June, 2009 advising of the requirement in the Family Law Rules for filing of a s.60I certificate from a registered family dispute resolution provider and giving information about compulsory family dispute resolution. It notes that her cheque and the documents were returned.

    (iii)Letter from the Federal Magistrates’ Court to the wife confirming that documents had not been filed and the need for s.60I certificate.

    (iv)Affidavit sworn by the wife on 22 June, 2009 (which was not accepted for filing) in which she deposed to her need for an exemption requirement to file a certificate. 

    AD 2(i)       Two page email from the wife to the husband’s solicitor at MacPherson & Kelly complaining about their handling of the matter and advising she would be reporting the firm to the “Legal Commissioner of Victoria”.

    (ii)Letter to the husband’s solicitor from the wife dated 22 December, 2009, mainly referrable to alleged delay.

    AD 3Letter from the husband’s solicitor to the wife dated 16 December, 2009 in which they set out the names of three psychologists who could prepare the family report ordered on 14 December, 2009 and provided copies of their CVs and fees. 

    AD 4Two page email from the wife to the Associate to Federal Magistrate O’Dwyer complaining about the orders made by his Honour, seeking that they be reviewed and advising that a copy would be sent to the “Complaints Division of the Family Law Courts”.

    AD 5Copy of a receipt for a fee of $500 paid to Ms C, psychologist. 

    ADF 6            Report of Ms C, dated 17 December, 2009. 

    AD 7              List of sporting opportunities in the H area.

    AD 8              T School, New South Wales north coast, 2010 school dates. 

1. Paragraph 2 of this application sought that the father be ordered to attend an appointment for a family report with Ms A on 6 January 2010;  paragraph 5, that he be ordered to reorganise an appointment that had been made for J with her oral surgeon and various orders relating to that and payment of the surgeon’s fees;  paragraph 7, that the father return to the mother K’s passport which he had incorrectly or unreasonably withheld;  paragraph 8, that all other matters relating to unfair and insufficient child support and alteration in child support orders be granted another hearing date. 

2. On 11 February, 2010 the father filed a response to the mother’s application together with an affidavit affirmed on 10 February, 2010, containing a number of annexures, as follows :  *

   SD 1               Copy of interim order of 14 December, 2009.

   SD 2Letter from the husband’s solicitor to the wife dated 16 December, 2009 (which was also annexed to the wife’s affidavit sworn 22 December, 2009). 

   SD 3Report of Ms C, psychologist, dated 17 December, 2009.

   SD 4Letter from the wife to the husband’s solicitor dated 22 December, 2009 (a copy of which was annexed to the wife’s affidavit sworn 22 December, 2009).

   SD 5Letter from the husband’s solicitor to the wife dated 23 December, 2009 advising that the husband did not agree to Ms. A preparing a family report on 6 January, 2010, and that an appointment had been booked with Mr. P on 10 March, 2010. 

   SD 6Letter from the wife to the husband’s solicitor advising she would be moving permanently to H in early February, that the lawyer would have to make arrangements for K to live fulltime with the father and fully support her from the end of January until the end of May and that she had reported the solicitor personally to the Legal Commissioner of Victoria. 

   SD 7Email from the wife to the husband’s solicitor dated 18 January, 2010, again referring to her report of the solicitor and setting out the reasons why the court should award sole parenting rights to her.

   SD 8Letter from the husband’s solicitor to the wife dated 18 January, 2010 advising they did not intend to reply in detail to the allegations in her fax as a email and advising that if she proceeded with her application on 15 February, 2010, the husband would be seeking costs. 

   SD 9Email from the wife to the husband’s solicitor advising she was relocating to New South Wales on 17 February and could not afford to come back for any subsequent appointment with a psychologist. 

   SD 10Pages taken from the wife’s Facebook page with includes the wife’s invitation to her Facebook friends to come for a meal at 6:00 pm. or drinks later at the RSL on 16 February to farewell her and K. 

3. The same day the husband filed an application seeking that the wife be dealt with for contravening the orders of 15 August, 2001 as she had not provided K to live with him on Friday 29 January, 2010 and other occasions after that.  By then, K had been sent by her mother to live in H in New South Wales, in a flagrant breach of the earlier orders.

4. These matters came before Federal Magistrate O’Sullivan on 15 February, 2010, which was a Monday.  They may have come before his Honour in a duty list.  On that day his Honour vacated the trial date in the Federal Magistrates’ Court of 21 May and removed the case from that court’s pending case list.  Pursuant to section 39 of the Federal Magistrates’ Act 1999 he transferred the proceedings to this court to be listed with such priority as the court deemed appropriate.

5. That very day the matter was listed before Bennett J. She ordered that the interests of K be independently represented and made the usual orders in relation to such a request. Pursuant to s.11F of the Family Law Act 1975 she ordered the parties to attend an appointment with a family consultant of this registry of the court for a parenting issues assessment; other orders specified the times of attendance and provided for K to attend by telephone from the premises of T School on the New South Wales north coast.

6. Her Honour requested that the family consultant consider the best interests of K, with particular attention to the effect on K of an immediate return to Victoria, K’s ability to have a meaningful relationship with both parents and K’s views.  She otherwise adjourned the matter to 9:00 am. today for delivery of an oral report by the family consultant, if time constraints precluded the provision of a written report. 

7. The family consultant, Ms. L, saw both parents on 16 February and spoke for almost an hour with K on the phone.  In her report dated 17 February, 2010 Ms. L identified the issues as follows :

   ·[K] is currently living in [H], New South Wales following [the mother’s] unilateral decision to relocate there without the agreement or knowledge of [the father].

   ·The impact of [the mother’s] relocation with [the child] on [the child’s] relationship with her father.

   ·[The mother’s] willingness to support [K] in her relationship with her father by complying with Court Orders around the amount of time [K] spends with her father. 

   ·[the father’s] concerns that [K] has made decisions based on misinformation provided by [the mother].

   ·The amount of weight that can be given to [K’s] wishes about where she lives.

8. Ms. L also considered potential future directions, as follows :

   ·    If [K] remains in NSW:

   -    [K] should spend substantial time each school holidays with her father in order to assist them in maintaining their relationship.  [K] will also need the opportunity during visits to Melbourne to spend time with paternal and maternal family and friends.  It will be important for [the father] to also spend time with [K] in NSW in order for her to feel he is a part of her life there. 

   -    [K] and [the father] would benefit from an opportunity to have a supported discussion about the relocation, in order to assist them in moving forward in their relationship and in addressing any feelings of guilt and/or grief that they may be experiencing.  A referral to Child Dispute Services, Child Inclusive Conference when [K] visits her father during the April school holidays would be an appropriate forum for this discussion.

   ·    If [K] returns to Melbourne :

   -    Further assessment would be required to more fully determine the emotional impact to [K] of a return to Melbourne, particularly if her mother was unable to return with her.  Although [K] has strong ties to Melbourne and is not vehemently opposed to returning, it would result in significant change for her;  most importantly a change of residence to her father.  If [the mother] were required to return to Melbourne, it is unlikely that [K] will be directly, adversely affected but rather impacted by her mother’s inability to manage this in a manner that protects [K] from her own associated emotional distress.

   -    At almost 16 years of age, it will be difficult to Order or enforce [K] to live with either parent against her will.  It was difficult to assess via telephone her level of maturity and level of influence in her current decision making, however she impressed as having average maturity for her age and there was no direct evidence of influence around her decision although it would appear she is supporting her mother by taking responsibility for the relocation decision. 

9. Her Honour was unable to hear the matter today and it was transferred to my list.  Ms. L gave oral evidence and there was some short cross-examination. 

10. As noted, a lot of material is before the court.  The mother prepared her own material;  she is not legally represented.  The mother is a lawyer but there is no evidence that this is a jurisdiction in which she practises.  The bulk of the material annexed to her affidavits is objectionable, as are much of the affidavits themselves.  I do not propose to concern myself with that at this stage.  I have read the whole of that material.  The father’s material, particularly the lengthy affidavit, was prepared when he was legally represented;  understandably it is more contained.  I have read the whole of that material. 

11. The mother raises many complaints.  She complains that the court refused to issue the proceedings earlier in 2009 without a counselling certificate;  the court failed to provide a speedy hearing;  the proposed trial in May 2010 will disrupt K’s school year and go against her wishes.  The mother expresses in a number of documents her assumption that if a child starts a year at a particular school the court will not move the child in the middle of the school year;  a reading of judgments in other cases would demonstrate the lack of foundation for her assumption.

12. The mother complains that the Federal Magistrate wanted “proof” about a letter written by K which was annexed to one of the affidavits sworn by the mother.  A child of K’s age cannot give evidence before a court unless the court determines it to be appropriate.  The mother’s account is that the Federal Magistrate thought it would be necessary for there to be some independent assessment of K’s wishes. 

13. The mother complains that the magistrate cannot have read her material;  if he had, he could not have made the orders he did.  Her evidence is of sending an email to the Federal Magistrates’ Court, complaining about the orders made on 17 December, 2009.  That email was sent to the associate to Federal Magistrate O’Dwyer.  In it she said she wanted a “review” of the orders;  she told the associate she was sending a complaint to “the Complaints Division of the Family Law Courts”.  She deposes a number of times that the only hurdle to this move is proof of K’s wishes and that, in order to get over that hurdle she, unilaterally, obtained a report from a psychologist, Ms C, who, according to the mother, did not need input from either parent.  I will come back to Ms C’s report.

14. The mother raises a number of reasons why she believes it is vital that she and K relocate from D where they have lived for, as I understand her evidence, a very long time.  She refers to harassment by “a former ex” (not the father) and says the sight of him is not healthy for her or K.  She makes allegations of inappropriate behaviour by him towards her and towards K.  She refers to the manager of a previous employer of hers, who sexually harassed her or attacked her, which led to proceedings in VCAT and a confidential settlement.  She says it is hard to live close to the father’s family, who have a total lack of respect for her and ignore her when they see her at sporting and other events.  The mother deposes that she must – “must” is in capitals – leave D urgently to escape this “constant reminder of trauma”. 

15. The mother refers a number of times to financial costs.  She describes D as being “like the ends of the earth for everything”.  She refers to the cost of taking K to sporting events;  her evidence is that K is a talented athlete. 

16. From the mother’s perspective she is, and I use her word, imprisoned in D.  According to her, she and K are alienated from her older children and her family. When I raised that evidence with her during submissions, she endeavoured to resile from her sworn statements. 

17. The mother deposes to what she calls a long distant relationship with a partner who is a sporting professional, who travels around Australia but is based in Queensland, who could visit her at weekends were she to live at H.  She deposes that even if that relationship does not last a long time, there is more chance of “meeting someone” in H than in D, which is “a no zone for social networking”.  She says that in H there are many more sporting opportunities for K and for her, she deposing that she, too, is a talented sportswoman. 

18. The highest the material goes when dealing with K’s response were she to live with her father in D, is her evidence that K would be “uncomfortable” living with the father for periods other than “visitation”.  The mother deposes to knowing three families in H, all of whom have relocated there from D.  She deposes to a number of other people she has met there.  She seeks an “undoing” of the orders of 14 December, 2009, they being the orders that restrained her from removing K’s residence until further order, and set in place the orders for a trial in May 2010.

19. In an email to the father’s then solicitor dated 16 December, 2009 the mother wrote that she practised in law and was going to contact the Legal Commission of Victoria – I assume she meant the Legal Services Commission – to complain about that law firm.  She referred to clear legal advice (apparently received by her) that the court would not make an order against K’s wishes. 

20. Much of the evidence before the court goes to a dispute between the parties as to who was to prepare the family report ordered in December 2009 which was to be adduced into evidence in the foreshadowed trial in May this year.  The mother began pressing for the preparation of a report in December or January.  The lawyers for the father referred to the fact that the order imposed no such time limit.  They advised that if the trial were to be in May, it would be best if the report were fresh and prepared in March or April 2010, rather than December 2009 or January 2010.  The mother wanted the family report to be prepared by either of two named psychologists.  Both may be capable psychologists.  I have not seen family reports prepared by either but that means nothing in relation to their professional expertise.

21. That discussions between the father’s solicitor and the mother became willing is demonstrated by a letter from the father’s solicitors of 12 December, 2009 in which they advise that due to the mother’s argumentative manner and threats made to them on the phone, they would henceforth only communicate in writing.  From then on there was something of a correspondence war.

22. On 12 December, 2009 the father’s solicitors suggested three potential psychologists to prepare a family report, being Mr P, Ms O or Ms Y.  CVs for each of them were provided and the costs of each.  The mother responded by saying that she would like a report to be prepared by Ms A and that (without advice to them) she had made appointments for the parties and K to attend Ms. A on 22 December 2009.  She booked further appointments for 6 January, 2010.

23. A lot of correspondence relates to the mother’s assertion that the father should pay the costs of the psychologist.  Ms A’s fee was $2,400;  the others varied significantly. 

24. On 22 December, 2009 the mother wrote to the father’s solicitor “I confirm I am leaving for [H] at the end of January.”

25. The solicitors for the father wrote to the mother with advise of appointments with Mr. P on 10 March, 2010.  The mother replied that that date did not suit her, as she would have relocated by then.  On 18 January, 2010 the mother advised by email that she had sold her property at d and bought a property in New South Wales.  The sale was to settle in mid February and she would be leaving D then.  On 19 January, 2010 she advised that she would be relocating on 15 February, 2010 and that she could not afford to return for appointments with a psychologist in Melbourne.

26. The father then alleged that the mother had the property in D on the market at $980,000 and had deposed in her form 13 to an investment property in inner Melbourne and a share portfolio.  It was his submission they should share the costs of the family report and was sceptical of her assertion she could not afford a fare to Melbourne. 

27. On 28 January, 2010 the father learnt, in the course of a conversation with his daughter J, that the mother had taken K to northern New South Wales that morning and was to return on 30 January.  K should have started school at N School on 29 January.  What followed on the father’s evidence, were a series of deceptions practised by K on him so he would not know that she was in northern New South Wales, where she had been sent by her mother to enrol at a local school and attend an orientation day.  In order to explain why the father could not collect her after swimming on 30 January, K made up a story about spending time with a school friend at D. 

28. In the course of submissions I referred to the poor role modelling involved in getting a child to lie to a parent about his or her whereabouts.  In her final submission, the mother said that very recently – perhaps last weekend – K had told her father that she was going to a party and had been found by her mother in a park, drinking.  Children model what they are taught by their parents;  if told to lie about one aspect of their lives, it is unsurprising they lie about others. 

29. An initial reading of the material might suggest that K went to northern New South Wales in late January 2010, started school there, and has been attending regularly since.  That is not the case.  K was enrolled there at the start of the 2010 school year.  She came back to Victoria in February, 2010 for her sister’s 18^th birthday and stayed a week, missing school.  She then participated in a sporting event in Victoria on 13 February and went back to New South Wales on 14 February.  The mother’s evidence is of K doing homework in this time.  She has returned to school in New South Wales this week, so has attended only eight days of school this year.  I have been told the school is T School.  The father received a bill for a year’s fees from T College, which is presumably the same school. 

30. The court has had the benefit of cogent evidence from Ms L.  Her time with the parties and K was brief.  She spoke with K for about an hour on the phone and had two sessions with each of the parents.  Ms. L’s evidence is that K managed the conversation well.  She is a friendly and pleasant child;  she was a bit hesitant but only within the normal parameters of typical teenage hesitancy.  She told Ms. L she is happy and has made friends.  She said the school in New South Wales is bigger and offers more subjects.  When K spoke with Ms. L on 16 February, she had only attended the school on six or seven days. 

31. K was fairly diplomatic when talking with Ms L about her parents.  She told her, as she told Ms C, that it was her decision to relocate, not her mother’s, an apparent assumption of responsibility by a teenager.  Ms L said that she could not get a real sense as to whether K was taking responsibility in order to make life easier for her mother.  She told Ms L that her mother had spoken of moving to Melbourne or somewhere else on the Peninsula and that she, K, had preferred New South Wales.  Having regard to the mother’s evidence of three families from school moving there, that may be the origins of the choice.

32. K told Ms L she would return to D in school holidays.  She said if she were ordered to return, she would be angry and annoyed.  She believes (accurately, having regard to her mother’s submission to the court) that her mother will not return with her.  She did not express any actual opposition to living with her father but said she was not quite as comfortable with her father as she was with her mother.  She has a close relationship with both parents.  Ms L said her sense was that K was choosing to live with her mother wherever she lives, rather than choosing to live specifically in H.  Illustrative of the pressure she feels, her wish to be diplomatic and her desire not to hurt either parent K, at 15, offered to pay the airfares for her father to come and see her in New South Wales or for her to come and see him in Victoria.

33. With Ms L the mother raised a number of the matters raised in her affidavit material.  She was in the process of moving.  She feels unable to remain in D due to her personal circumstances and difficulties with some people in the area.  She has been there a long time.  She has a right to freedom of movement. 

34. Ms L discussed the contravention application with the mother;  her explanation for the blatant breach was that the court process had let her down.  She wanted to get K settled.  Her legal research indicated that K would be able to relocate.  K is to become an elite sportswoman. Ms L expressed concern about the mother’s lack of regard for K’s relationship with the father and concern that she had required K to lie to the father about her attendance at the school in New South Wales.

1. Ms L reported that the father is both generally and genuinely concerned that he will not see K again until she is much older, if she relocates.  He is torn.  On the one hand, he does not want to force her into a decision.  On the other, he believes her decision has been made on misinformation and accuses the mother of manipulating K to achieve a move which the mother wants but which is not in K’s best interests.  His view, a view shared by Ms L, is that K is choosing to live with her mother, rather than in a particular area. 

2. Ms L referred to the fact K finds it difficult to speak with her father about the move, and the father finds it difficult to speak with K about it.  Her professional assessment is that this is directly linked to K’s guilt at deceiving her father and the circumstances in which she left;  it is hard for her to explain to him that she loves him but wants to live somewhere else. 

3. Ms L referred to a number of matters subsequently adverted to by the independent children’s lawyer.  Given K’s age, it could be difficult to enforce orders requiring her return.  She had said to Ms L that she would go home when she turned 16, she apparently being under the apprehension (commonly touted in some sections of the press and advanced by her mother) that children can make all decisions about their living and personal arrangements once they turn 16.  One wonders whether the mother would be content for K to move to another country to live alone.  Ms. L’s professional opinion is that K’s relationship with the father was likely to withstand the separation but it was very important they spend time together very, very soon if damage were not to occur.

4. Ms. L’s evidence was that at fifteen and a half K is at an age when social relationships begin to take priority over relationships with parents but reiterated her concern about the mother’s ability or willingness to support K’s relationship with the father. 

5. Ms L agreed that if K came to Melbourne, for example in school holidays, she would need to spend time with extended family members as well as with the father and that she did a lot of travel when living in D to support her sporting commitments.

6. Asked about the effect of removing her from a situation where she could have regular and frequent time with her father, Ms L said there would be some impact.  By the age of 15, attachment is well formed and she did not doubt the attachment would survive.  However, she was unable to quantify the potential disruption to their relationship, which is a different thing.  The father has been available to K every second weekend and there would be some grief for K about the loss of the relationship.  As the court is not infrequently told by experts in these cases, it is very hard for a child to have an accurate understanding of the ramifications of a move which impacts dramatically on the time spent with one parent.

7. The only other expert evidence before the court is the report of Ms C, to which I adverted earlier.  One wonders what Ms C must think about the Federal Magistrates’ Court as she was told (untruthfully) that her report was required by the Federal Magistrates’ Court and there was to be no involvement of the parents. The mother told her that the court required an independent professional opinion regarding K’s alleged readiness to move interstate away from her father, a knowingly simplistic and inaccurate summary.

8. The report suggests that Ms C, a psychologist who practises in Melbourne, behaved very professionally.  Having been put in that position, she insisted the mother desist from giving her background from her perspective as it was clear she was not going to get “both sides of the story”.  She referred to the fact that, unlike almost every case in which a report is ordered by a court, there was no written letter of instructions or request.  What she was provided with was a copy of K’s letter to the court and a series of what she described as largely unrelated drawings of K’s from early childhood.

9. K told Ms C that she was there because of problems that had arisen regarding a potential move to H.  She said it was her idea initially to move, because she always wanted to live in a warm client where she could swim all year round.  The mother had, according to K, originally suggested that as the older children would all be out of the house almost permanently by 2010, she and K should move to Melbourne to further K’s netball pursuits.  K “turned her mother around” when they visited the city and looked at city schools, such as MLC;  K said she had never been a city child and she did not want to come to the city.  She convinced her mother to look at H.

10. K then described seeing her father every second weekend.  She said she goes to see friends when she is there.  She did not discuss problems and “girlie stuff” with him.  As Ms C noted, that is not unusual.  K told her she loves her father and her mother;  the father had never hurt her physically or emotionally, he had never let her down, he was an okay dad, he tried to do things right like a dad.  She found the discussion difficult.  She felt loyal to her father and did not want to be disloyal but said she did want to leave.  She said she would come to Victoria every school holiday to see her father and all her friends.  At that point she started to cry and remained distressed for the rest of the assessment.

11. K told Ms. C she felt she was being tugged between her parents and this was very distressing.  She could not talk directly to her father.  She was worried he would get angry with her, “go quiet and not talk”.  She did, however, insist that her father had never hit her, hurt her or threatened her in any way.  She said her parents never talk about each other and never bad mouth each other;  she said she has no idea how they feel about each other.  She knows they don’t talk but that doesn’t bother her. 

12. In Ms C’s opinion, K appeared to have a loving relationship with both her parents.  She is sensitive to her father’s unhappiness about him and extremely reluctant to demonise him.  She impressed as a reliable and clear headed girl.

13. Ms. C wrote that K was demonstrably an outdoor girl who looked forward to a life in the sun with her mother, punctuated by frequent visits to her father and friends.  She said she would not lose contact with her father and would ring and visit frequently.  I quote the concluding part of that report:

    It would appear from [K’s] telling it was she and not her mother who has initiated the potential move north.  Nevertheless with all the older children leaving home this year it is a situation her mother is apparently very happy about.  If she is to move I would be supportive of the move happening over the holidays and [K] commencing year 10 with the least possible disruption, either here or in New South Wales.  This may prove to be only temporary for any number of reasons and they may return south.  On the other hand the relocation may be permanent, and there is the possibility that [K] will be less willing to travel south on such a regular basis as she enters her late teenage years. 

    [K] presented an honest and convincing historian.  I do not believe she is under instruction or manipulation from either parent on the face of it.  In the absence of any instructions, this is the best I can offer at this point. 

14. On its face, this is an objective, professional opinion.  It could not be said to be a wholehearted endorsement of a move.  The psychologist notes that things change;  what seems to be permanent, sometimes is not.  I place weight on the report as an expression of K’s views at that time. 

15. In relation to the parties’ circumstances, I say only this.  There is a dispute between them as to how much of the time the father lives at D.  He says he lives there.  He agrees that his wife and step-daughter live in Melbourne and he is in Melbourne with them three days a week.  The mother views D as his holiday house.  The father has a professional practice in D and is involved in a local business there.  At the end of the submissions, the mother alleged he was building strata units in D.  Her evidence is that he comes from a wealthy family, who hide their wealth to ensure he does not pay proper child support.  If that is right, it can be dealt with through the Child Support Agency or the court. 

16. The mother complained about the limitations on her career opportunities;  her evidence is that she has not been able to get appropriate work and cannot afford to live with K at D.  On the evidence, K has flown several times to Melbourne since moving to attend social and sporting events.  Having regard to the evidence I can assume that the father did not pay for these flights, nor the earlier ones to enrol at the school and attend its orientation day.  It is probable the father’s scepticism about the mother’s alleged incapacity to fly to Melbourne to see Mr. P was well founded. 

LEGAL PRINCIPLES

1. The provisions in the Family Law Act 1975 relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).

2. When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration.  In determining where those best interests lie, the court must consider the primary and additional considerations set out in s.60CC.

3. There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA).  The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent.  The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence.  The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply. 

4. If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests and reasonably practicable (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests and reasonably practicable (s.65DAA(2)).

5. The Act sets out a number of additional considerations to which the court must have regard.  The first is the views of a child.  There are many other matters, including the child’s relationship with both parents and other people of significance to him or her;  parental capacity to fulfil the child’s parenting needs;  their understanding of parental responsibility and parent’s capacity to actually foster and encourage a relationship with the other parent;  and matters referable to the practicability of contact and whether, for example, distance will impact on that. 

6. Importantly, if the court makes an order for equal shared parental responsibility, as sought by the mother in her initiating application, the court must consider whether spending equal time with both parents is in the child’s best interests and reasonably practicable.  If it is not, it must consider whether a child spending substantial and significant time with both parents is in the child’s best interests and reasonably practicable.  Substantial and significant time means more than just weekends and school holidays. 

7. The mother’s position is that she will live in New South Wales.  If K is ordered to return to Victoria, she will not be living with her daughter.  This is consistent with the solipsistic material on which she relies.  The father’s submission is that he will find it very difficult to travel to H to see K there, due to his commitments to the three other (albeit adult) children, his 12 year old step-child and his wife, and his business interests at D. If K is not at d their relationship will be reduced to phone calls and email and school holiday time, if she comes to Victoria.  It is his submission this would profoundly and adversely impact on their relationship. 

8. The independent children’s lawyer has considered the evidence.  When she cross-examined Ms L, she spoke of the paradox, in a sense, of a child who appears to have strong ties to D expressing such keenness to live somewhere else, and Ms L agreed the keenness was surprising.  K told Ms L that she would miss her friends, and that they were sad she was going, but that they understood the appeal to her of the proposed move.  Ms. L agreed K was in “a bit of a honeymoon stage”, which resonates with Ms C’s opinion that the child was looking forward to “a life in the sun” with her mother. 

9. K’s views wishes need to be given significant weight.  However, as Ms Forster submitted, if K has been misinformed about the weight that will be given to those views, that is a matter of concern.  Further, a child of her age, however mature, is unlikely to truly comprehend the impact on her of moving away from a parent, siblings and friends with whom she has spent regular and frequent time. 

10. The independent children’s lawyer considered two proposals, and put forward arguments in support of each.  She submitted that K is not settled in New South Wales.  The wishes that she has expressed were established when she was, according to the mother, about 15, in the middle of last year.  The independent children’s lawyer was concerned about the implications of the decision, and its impact on the child’s relationship with the father, her family and her friendships.  She did not put the same weight as the mother on the sporting opportunities available in New South Wales.  K has been able to excel in Victoria, albeit, the mother would say, as a result of considerable sacrifice, financial and personal, by her.

11. The independent children’s lawyer submitted that an argument could be made that a return to D now was the least harmful option in the long-term.  She was concerned that K may have made the decision, insofar as she made it, on the basis that she has only one option.  On the other hand, if K were to remain in New South Wales, the independent lawyer thought it would be important she have a clear understanding that that is an interim determination only.  It would be very important that she spend time with the father.  She needed to explore the recent events and the deception involved in the move and her involvement in that deception.  It was her submission that the mother should bear the costs of K’s travel.

12. The mother, in her final submission, raised a number of new matters. I have earlier adverted to one, being her assertion that last week, when K told her father she was at a party, she was in a park, drinking.  She alleged that, on one occasion, the father told K that if she wanted to move, he would support her.  She said K needs to be “rescued” from the friends she was associating with at D, who are sexually active and promiscuous.  Finally, she referred to the need for “restoration of the status quo”.  I make it quite clear that if there is a status quo in this case, it is K living with her mother at D, attending school at D and spending frequent and regular time with her father at D. 

13. The mother submitted that the father has never supported K’s (and possibly the other children’s) sport or their dancing.  He forced the mother to stay in the D area.  This has caused her financial and personal hardship.  She made a submission about the father’s wealth to which I have adverted.  She said she has come to court to be “rescued”, for her daughter and her sporting interests.  She wants to know why the father is staying at D.  She said she wants a life, and that she has hardly any quality of life with her daughter.  I take that as hyperbole as it would otherwise sit very uncomfortably with her evidence of the strong relationship they share and their involvement in many activities.  If it were literally true, it would be a matter of very significant concern.

14. It is the mother’s submission that K will be devastated if she cannot move.  She said the move is no different to sending a child to boarding school.  She will arrange for K to come to Victoria in school holidays. 

15. It is one thing to say that one will make arrangements to implement orders but another to actually, on a consistent basis, support a child’s relationship with the other parent.  The court must express considerable caution about accepting the mother’s statements about complying with orders, given her frank admissions in the case that, mindful of an order which restrained the child’s removal from D, in an order which referred to the possibility of fines and imprisonments, with a trial date in May, and having filed an application for a speedy trial, and facing an earlier order which restrained the child’s removal from her then school, she, unilaterally, relocated the child to H where she presently lives with another family, and enrolled her in a school there. 

16. There is no magic in relocation cases.  They are not a specific subcategory of parenting cases.  What is involved is a determination of a child’s best interests and considerations of whether legitimate rights and freedoms of the parties must give way to the rights and interests of the child.  The best interests of the child are always paramount but they are not the sole consideration.  The court has to take into account, even at the interim stage, the various legislative provisions, although it may find it not appropriate to consider whether an order should be made for equal shared parental responsibility on an interim basis.

17. Even at the interim level, the court needs to assess the parties’ respective proposals, as part of its assessment of the best interests of the child.  The court is not bound by the parties’ proposals;  it can craft orders that will advance the bests interests of the child.  It is also necessary to consider, as submitted by the mother, questions of parental freedom of movement.  In that context, it is useful to bear in mind what was said by Gummow and Callinan JJ in U & U (2002) 29 FamLR 74, at [92], which is that :

    The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents.  Obligations, both legal and moral, the latter sometimes lasting a lifetime and restrictive of personal choice and movement, have been incurred.

18. The Full Court has considered issues relating to relocation in a number of recent cases, including  Taylor v Barker (2007) FLC 93-345; Sampson v Hartnett (No.10) (2007) FLC 93-350; Starr & Duggan [2009] Fam CAFC 115; McCall v Clark (2009) FLC 93-405 and, of course, Rosa & Rosa [2009] Fam CACF 81, a case which gave rise to a lot of publicity last year.  The High Court has not, as yet, published its reasons for its decision of 3 December, 2009 to uphold the appeal against the orders made by the Full Court in Rosa & Rosa.

19. I take into account K’s views, as expressed to Ms C and in her discussions with Ms U.  She is fifteen and a half and real weight must be given to them.  I take into account the relationship K has enjoyed with both her parents.  The mother, in her submissions and, indeed, in her material, is critical of aspects of the father’s time with K, although K, with Ms C and with Ms U, raises no complaints about that.  I have concerns about the willingness of the mother to facilitate and encourage a close and continuing relationship between K and her father.  It is, objectively, very difficult to see that a four month delay, which is what would be involved to wait for the trial in May, could impact as adversely on K as asserted by the mother, and it is more likely that the mother’s desire for haste relates to her own wishes and desires. 

20. The court has to consider the likely effect of any change in the child’s circumstances arising from separation from a parent and from others such as grandparents and other relatives.  This is problematic in this case.  If K comes back to Melbourne, she may see much less of her mother.  K has been moving frequently between H and Melbourne.  The mother may do that too, or she may not.  That is in her hands.  Similarly, if K lives in H, the father’s business and family interests will make it difficult for him to see K other than in school holidays.  What K may face in either circumstance, is living with one parent and seeing the other only in school holidays. 

1. The court has to consider the practical difficulty and expense of a child spending time and communicating with a parent.  The mother relies heavily on her inferior financial position.  It may well be that her position is not as good as the father, or that a court may find that the father’s financial position is better than he has deposed.  However, K has returned to Melbourne frequently over the last few weeks and, according to the mother, will travel to Melbourne again for a sporting event at the end of March.  It appears that she has the capacity to travel when it suits the mother.    

2. I have concerns about K’s understanding of the impact of a move. Her comments to Ms L about her new school are indicative of a view through rose-tinted lenses.  She has spent only a few days there.  The education offered at N School was sufficiently good to earn S a place in Medicine at Melbourne University. 

3. Matters such as the parents’ attitudes to the responsibilities of parenthood have been adverted to, and will be teased out in a trial. 

4. The court is required to consider whether it should make an order that will be least likely to lead to the institution of further proceedings.  In my view, a trial is imperative in this matter, which is why I propose to list it for trial within the same timeframe as was envisaged in the Federal Magistrates’ Court.  

5. I place weight on the objects and principles which underlie the legislative provisions relating to children and the Full Court’s admonitions about the importance of considering the relevant issues at this interim stage.  I make it clear that these reasons relate to the application to relocate, and not the contravention application. 

6. The mother wants K to remain living in H in the interim and come to Melbourne for the April school holidays, have a family report prepared and return to H until trial.  The father seeks that K return to Victoria to live, pending trial.  He is content for her to live principally with the mother, pending trial, in the D area.  If the mother will not stay in D, K can live with him there. 

7. I am satisfied that K’s best interests require her to return to D until trial, when all issues relating to her best interests can be considered.  I am not satisfied that the detriment, on which the mother relies, can carry the weight to which the mother submits.  To the contrary, D offers stability.

8. I find weight in the submission of the independent children’s lawyer that that is the order which will do least harm to K, who has a relationship with her father, a relationship with her siblings and a relationship with grandparents in Victoria.  If she needs to move to H after the trial in May, she will move. 

9. I determine that Ms L should prepare a family report to be released by 27 April, prior to a trial on 17 May, 2010. 

10. The parties are to file and serve their material by 12 May.  Bennett J’s associate may be in touch to fix a 9:00 am. telephone mention prior to the trial date, to ensure the case’s readiness for trial.  Orders will provide that if the mother is prepared to relocate to an area which would allow the child to attend school at N School, without travelling unreasonable distances, K will live with her until further order, and spend time with the father pursuant to the earlier orders.  If the mother will not relocate, K will live with the father at D and spend time with the mother as agreed, provided that time in the March/April school holiday period not impact on Ms L’s capacity to meet with the family.

11. K is to be returned to commence school at N School on 1 March, 2010.  The father may think that is too far away but the arrangements need to be orderly and clear.  The mother’s obligation is either to return with K, or to deliver K to the father on the afternoon of Sunday, 28 February, 2010 at 5:00 pm., or such other time as they agree.  The order will provide for the father to deliver K to school the next morning.

12. I defer at this time any consideration of whether these reasons for judgment and those parts of the mother’s affidavits which trumpet her disdain and disregard for court orders should be referred to the Legal Services Commission.  I say only that I have concerns about the propriety of a person expressing those views holding a practising certificate as an Australian lawyer.

13. The reasons for judgment will be transcribed and a copy will be made available to the parties.  The transcript of evidence of Ms L will be transcribed and a copy made available to the parties, as will the transcript of the hearing.

*When ex-tempore reasons were delivered, the court noted that details of annexures to affidavits would be set out in the transcribed reasons.

I certify that the preceding
97  paragraphs
are a true copy of the reasons for judgment
 herein of the Honourable Justice Brown AM.
Dated the         day of         2010.

…………………………………………
Associate