Evans and Kennedy - [2007] FamCA 322

FAMILY COURT OF AUSTRALIA

EVANS & KENNEDY

[2007] FamCA 322

FAMILY LAW - CHILDREN – With whom a child lives - Relocation – Contested proceeding involving a relocation issue to Karratha in North West Australia – Resolved after two days – Explaining the resolution and derived benefits.

M and S (2006) FamCA 1408;
Godfrey v Sanders (2007) FamCA 102

APPLICANT:

Ms Evans

RESPONDENT:

Mr Kennedy

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLF

1822

2006

DATE DELIVERED:

16 March 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

Guest J

HEARING DATE:

15, 16 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Weil

SOLICITOR FOR THE APPLICANT:

Jane Curtis & Associates

COUNSEL FOR THE RESPONDENT:

Ms Jenkins

SOLICITOR FOR THE RESPONDENT:

Susan Ruffin

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

Ms Spehr

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Victoria Legal Aid

Orders

That all a previous parenting orders be and are hereby discharged.

That the parties have equal shared parental responsibility for the child, a daughter, born in September 2002.

That the child live with the Mother.

That the Mother be permitted to relocate the child from Victoria to Western Australia from 7 July 2007.

The child spend time with the Father -
(a)for a period of 10 days in each of the first and third term Western Australian school holiday periods,
(b)for a period of seven days in the second term Western Australian school holiday period commencing 2008,
(c)for a period of two weeks in the long summer vacation period 2007/8 commencing in the first week in January 2008,
(d)for a period of three weeks in the long summer vacation 2008/9 and each alternate year thereafter commencing no later than the 23rd of December,
(e)for a period of three weeks in the long summer vacation 2009/10 and each alternate year thereafter commencing the first week in January 2010,
(f)by telephone once per week at 4.30 pm Thursday (Western Australian time) with the Mother to initiate the call and at all other reasonable times initiated by the Father,
(g)by webcam/e-mail as agreed and at all reasonable times as requested by the child,
(h)for the child's birthday and the Father's birthday and Father's Day, the Mother to initiate telephone contact between the child and the Father,
(i)in the event the Father travels to Western Australia the Father spend liberal time with the child as agreed between the parties,
(j)such further and other times as may be agreed between the parties.

That the Father's time spent with the child pursuant to order 4 (a), (b), (c), (d) and (e) herein be subject to the Undertaking given this day (and attached) by the Paternal Grandmother … .

That for the purposes of the Father spending time with the child pursuant to paragraphs 4(a)-(e) herein, the Mother shall be responsible for the costs of all transport subject to order 12 and will provide the Father with the travel itinerary for each period of time to be spent 14 days prior to commencement of travel.

That each party notify the other as soon as is practicable of any significant injury or illness arising with respect to the child as soon as is practicable.

That the Mother authorize the child’s school from time to time to forward to the Father copies of school reports, newsletters and photo order forms, such expense (if any) to be borne by the Father.

That the Father shall facilitate telephone contact between the child and the Mother once each week with the Father initiating the call and all other reasonable times initiated by the Mother when the child is in the Father's care.

That each party keep the other informed at all times of their current residential address and telephone number.

That until such time that the Father obtains full time employment the cost of air-fares required for the child to spend time with the Father (pursuant to paragraph 4 hereof) be borne by the Mother. At such time that the Father obtains full time employment then the cost of the said airfares be shared equally between the parties.

The Father's time pursuant to Order 4 commence on 1 August 2007.

That until the commencement of the Father's time in Order 4, the Father spend time with the child as follows -
(a)From Thursday 4 pm until Saturday 2 pm each week, for the last three weeks of a four-week cycle and in the first of the four-week cycle from Thursday 4 pm until Sunday 5 pm with the cycle commencing Thursday 22 March 2007.

That until the Mother relocates to Western Australia the changeover will take place at G in rural Victoria and from the commencement of the third term school holidays 2007 changeover will take place at T Melbourne.

That pursuant to sections 65DA(2) and 62B 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 Fact Sheet attached hereto and these particulars are included in these orders.

That the Independent Children’s Lawyer be forthwith discharged from further conduct in these proceedings.

That pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

That all extant applications be dismissed AND THAT these proceedings be removed from the Active Pending Cases List maintained by the Court.

UNDERTAKING

That the Father undertakes to the Court that he will at all times when the child is with him not consume alcoholic beverages, illicit drugs or fail to comply with the doctor directed dosage of prescribed drugs.
The paternal grandmother will at all times when the child is spending time with the Father have regular contact with the Father and child (in person) to ensure that the child’s welfare is being properly and adequately cared for.
That until the 30th January 2011 (or until the Father obtains full time employment) the maternal grandmother will pay the cost of air travel from Western Australia to Melbourne and return to the extent that the Mother is unable to pay for the same.

AND THE COURT NOTES
The paternal Grandmother and the Father make the Undertaking attached to this Order without admitting the necessity for the same.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1822 of 2006

Ms Evans

Applicant

And

Mr Kennedy

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

This matter comes before me in the Standard Track List of defended cases and involves welfare proceedings concerning the daughter who was born in September 2002.
The father was born in December 1972 and the mother was born in January 1982. They met at A in north‑west Australia and formed a relationship. In 1999 the father and mother then moved to Victoria and commenced living together. In early 2000, as I understand it, they moved to South Gippsland and their relationship fell upon unhappy times, for reasons explained in their affidavits. As a result, they separated in May 2004. In early 2005 the mother re‑partnered with Mr W.
The mother has given evidence, before the resolution was reached, that she was bearing a child to her partner and that they planned to marry in the future. They are clearly getting on with their lives and I am satisfied, from all that I have read, that they have a solid and loving relationship.
In essence, the proceedings before me concerned an application by the mother to relocate with the parties’ child back to north‑west Australia, in particular to a town called W, some 30 minutes or so drive from A. The issue of the mother removing the child from Victoria was contested by the father.
I have had the advantage of reading the trial affidavits of the parties and the further affidavits relied upon by each of them. I have been greatly advantaged by very helpful Case Outline Documents prepared on behalf of the mother, the father and of the Independent Children's Lawyer. I have also read, and carefully so, the family report prepared by Mr S which was released in December 2006.
I can understand how it is that the proceedings got to this stage, but nonetheless there appeared to me, and I made this quite clear by way of a preliminary view to the parties at the commencement of the proceedings, that having regard to a number of decisions of this court, but particularly of the High Court concerning relocation, there seemed to be a degree of inevitability about the result.
In the course of debate I was helpfully referred to a decision of Dessau J in M and S (2006) FamCA 1408 and also of Kay J, sitting on an appeal from a Federal Magistrate, in Godfrey v Sanders (2007) FamCA 102, in particular paragraphs 27 to 44. I have read those decisions. Essentially, Kay J agrees with and supports what Dessau had to say and M and S (supra).
I might make my own personal view somewhat clear on this issue and say that I found much merit in the judgment of Kay J in Godfrey v Sanders, particularly as to the meaning of the adjective "meaningful". In my view, "meaningful" gains no further attraction by the “quantity” of time spent between a parent and a child. It is directed to the “quality” of that time in terms of a “meaningful relationship”. I am satisfied that the relationship between the father and daughter is a meaningful one. Significantly in this matter, I am also satisfied that the mother has so conducted herself in a highly principled manner since the separation between herself and the father as to encourage the relationship between the child and her father. For that she is to be greatly commended.
Experience has told me in this court that in highly conflictual circumstances such conduct is a rare grace, and I am hopeful that such will be recognised by the father. Such conduct of course underpins a very important consideration in relocation cases, namely the degree of satisfaction I have that the mother will encourage the relationship between the child and the absent father, for she has shown and demonstrated by experience her willingness to do so. It is so patently obvious that she appreciates the importance of the relationship that exists between both herself and the child.
The mother gave compelling evidence in the witness box for an hour or thereabouts and I thought she presented as an excellent witness. She had a full grasp of the facts, and, in my view, there was nothing that I could detect that could detract from her being accorded credibility in the proper understanding of the term.
I congratulate the parties in having the skill and the steel, if I can put it that way, in coming to this arrangement. As I said, there appeared to be a certain inevitability about the result, and I can understand how it is that the parties arrived at the court doorstep. They each had an arguable case, and, as I said also at the beginning of the proceedings, cases such as this are very difficult for there is really no midway point in that a party, by reason of an order allowing or refusing relocation, one way or the other will suffer grief.
However, I stress this. The proposals advanced on behalf of the mother are excellent. They are financially responsible. They recognise the importance of the relationship between the father and the child. Further, the mother, supplemented by her own mother (the maternal grandmother) will underwrite the cost of the husband’s travel I see it until 2011 or such earlier date as the father obtains full‑time employment.
I have every expectation that the father will make a genuine and proper endeavour to rise above his current position and seek to become a productive member in the workforce and thereby undertake his personal financial responsibilities for the support of the child. At the moment, the mother alone shoulders this onerous burden and the father should appreciate that he should contribute in a direct and meaningful way to that support.
I have got no doubt that this little girl is loved greatly by both parents, and I wish both parents the best in the future. I mark the Minutes of Consent Orders Exhibit "A". I make orders in terms of Exhibit “A”. I direct the solicitors for the mother to engross the orders and request there be added to re-numbered par 19 the following:
“AND THAT the proceedings be removed from the Active Pending Cases List.”
That ensures its removal from Casetrack.
I also express my appreciation for the responsible way in which all professional advisers have approached this problem. The issues could have been litigated over several days in much pain to achieve the result now before the court. I would ask the parties to take great pride in appreciating that they themselves have done that, with the assistance of the professional advisors, and that they both leave this court seized with the importance of each encouraging the absent parent when the child is in their care by promoting that parent as a good and loving parent.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate:

Date: 18 April 2007.

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