Fitzroy and Fitzroy

[2010] FamCA 358

FAMILY COURT OF AUSTRALIA

FITZROY & FITZROY [2010] FamCA 358

FAMILY LAW – INTERIM APPLICATION – Where the mother relocated shortly after judgment and orders delivered – Where the relocation affected the practicality of father spending time with the children as ordered – Where the mother asserts a change in circumstance – Orders made to list for a hearing in relation to change of circumstance – Orders made to facilitate time between father and children

King & Finneran (2001) FLC 93-079
Miller & Harrington (2008) FLC 93-383

APPLICANT: Mr Fitzroy

RESPONDENT: Ms Fitzroy

FILE NUMBER: BRC 5947 of 2008

DATE DELIVERED: 25 March 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 25 March 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Rosen Lawyers

RESPONDENT: Appeared in person

Orders

I formally order that:

1. This matter be listed before me at 2.15 pm on Wednesday, 19 May 2010 at which time the issue of whether there has been a sufficient change in circumstances so as to justify the revisiting of parenting arrangements in respect of the two children of this relationship be considered and determined.

2. In order to facilitate that hearing, the mother shall file and serve all such affidavits upon which she seeks to rely.  Each such affidavit confined to the issue of whether there has been sufficient change of circumstances so as to justify a revisiting of the parenting arrangements by 4 pm on 28 April 2010.

3. In the event that the father seeks to rely upon any material other than that filed by him on 4 March 2010, he file and serve same by 4 pm on 5 May 2010.

4. The mother shall be personally present during the hearing of the application on 19 May 2010.

5. The mother shall do all such things as are necessary so as to facilitate time between the children and their father from 4 pm, Saturday, 3 April 2010 until 4 pm, Saturday, 10 April 2010.  Secondly, from 4 pm on Wednesday, 5 May 2010 until 4 pm, Saturday, 8 May 2010 so that the mother can have the Sunday to drive back to T on Queensland’s central coast.

6. From 9 am on 19 May 2010 until 4 pm, Saturday, 22 May 2010 noting that on 19 May 2010 the children shall, while the proceedings before this court are being conducted, be in the care of the paternal grandparents.

7. In the event that the mother asserts that diagnostic testing is to take place on any dates on which time shall occur pursuant to these orders she shall:

   (a)       provide to the father written notification from the school to that effect; and

   (b)       at the same time, propose alternative dates upon which the time otherwise ordered pursuant to these orders can take place.

8. I reserve the father’s costs in this matter.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5947 OF 2008

MR FITZROY

Applicant

And

MS FITZROY

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 5 and 6 August 2009 I heard the trial of the parenting dispute between these parties.  On 6 October 2009 I delivered lengthy reasons for judgment and made orders.  The effect of the orders was, plainly, that the children would be able to spend alternate weekend time with their father. 

2. The mother moved within approximately two weeks of those orders being delivered to T on Queensland’s central coast. Weekend time with the father would not be practicably possible from there.

3. Initially the father applied for orders by way of contravention of those orders.  With some good sense the father abandoned the application for contravention (it having as its primary focus a punitive aspect) and focused instead upon those orders that might appropriately facilitate time between he and the children as was contemplated by the reasons made by me.

4. On that return date, I expressed my very considerable disquiet that the mother would appear to have unilaterally made a decision directly contrary to the decision made by me determining the amount of time between the children and their father which I considered to be in their best interests. 

5. On that occasion I also made orders for time between the children and the father to occur very shortly after those proceedings.  In those proceedings, and again in the atmosphere of my very considerable disquiet about the events that occurred subsequent to a contested trial and comprehensive reasons, I requested Ms D, who had prepared two family reports for the purposes of the proceedings, to prepare a further updated report.

6. The court expresses its gratitude to Ms D and the Child Dispute Resolution Services for facilitating such a report within a very short timeframe.  Ms D’s most recent report is dated 19 March 2010 and is annexed to an affidavit filed by her on 22 March 2010. 

7. The mother now appears to claim that she considered it permissible within the orders made by me to take the children to T, which the parties agree is approximately eight hours drive from where the father resides at M.  Quite how the mother can make that claim is beyond me, given both the terms of the orders and, more particularly, the reasons for judgment given by me at the time. 

8. For example, and as but only one example, I said at paragraph 218 of my reasons:

   It is appropriate to notate the mother’s intention to reside on the Sunshine Coast, but, of course, inherent in the orders is a choice of a place of residence by her but which avails the children of the ordered weekend time.  So too a notation ought reflect the current choice of residence by the father.

9. How the mother now says that the orders contemplated that she had a choice to live in a place eight hours drive from Brisbane will be an interesting aspect of the further proceedings I am about to order. 

10. It is also worth observing that in those reasons for judgment I said:

    The issues in this parenting case (in which the paternal grandparents have intervened) centred on the mother’s wish to live with the children in [Y, northern Queensland].  In that event, if the father does not move there or proximate to it, there will be a significant geographic distance between he and the children.  He currently lives on Brisbane’s southern outskirts.  The distance and the practicalities of travel between there and [Y], particularly if that travel is to include [B], as he would want, will likely make regular time between he and the children difficult.

11. I also said:

    The mother has made it clear that she wishes to maintain her role of being the predominant caregiver to [L] and [A].  That finds reflection in a number of her proposals and is summarised by her willingness to contemplate a restriction on her being able to live where she wishes if it means maintaining that role.

12. I made it clear in those reasons for judgment that I had taken account of a number of matters raised by the mother during the course of the hearing, not the least of which was her claim, which I accepted, that she would undoubtedly be happier if she was able to relocate with the children to Y. 

13. I also there raised a matter about which I was plainly very concerned.  I said:

    Those matters lead to concerns that if the mother is separated from the father and his parents by a significant geographic distance, her willingness to promote and encourage a close and continuing relationship between the children and the father may wane.  Certainly that is a matter of profound significance to the grandparents and I gauged their concerns in that respect as being sincere.

14. In reasons which might be seen to have resonance in the current circumstances confronting the court I said:

    If time was exercised in [Y] [the mother’s preferred place of relocation at the time] time would be spent by the father and [B] in a “non-home” environment during weekend time.  The children would have limited opportunities to experience on a regular basis a “home base” created for them by their father.  By dint of those matters, the capacity for the children to have stability and predictability about the regular role of the father in their lives is somewhat curtailed.

15. I went on to say:

    I strongly suspect that by reason of a combination of matters just referred to, regular time between the children and their father (and time between the children and their sister) is over time unlikely to occur with frequency or real regularity. Specifically, commendable though the attempts by the mother to maximise weekend time [in her then proposals] are I think it highly unlikely that weekend time would occur with regularity or frequency contemplated by exhibit W1.

16. I went on in those reasons to make a number of findings by which I made it clear that I considered it detrimental to the children if they were to not have the sort of regular time which the orders ultimately made by me contemplated. 

17. In the event, the mother’s unilateral move to T means that the concerns about a “non-home” environment during weekend time identified by me continued to pertain. 

18. Interestingly, and disturbingly, it seems that since the mother has moved to T there has been no time between the children and the father.  He says this is as a result of not wishing to expose the children to significant periods of driving in order to exercise the time.

19. One might think that there is an element of self‑serving satisfaction about that evidence given that it is entirely open to him to drive to T.  Nevertheless, it remains the case that precisely the sort of considerations that I found pertained to the arrangements then mooted by the mother of living in Y, apply in respect of her living in T. 

20. The mother filed a document pursuant to directions made by me on the last occasion seeking orders that, effectively, the children should live with her in T and that there should be time between the father and the children during school holidays and other times specified in the document, entitled “Proposals”, filed by the mother.

21. She supports those proposals by an affidavit also sent via email on 24 March 2010 and, I gather, subsequently sent to the court for formal filing.  It is not immediately apparent to me how any of the matters deposed to by the mother in that affidavit are said to constitute a change of circumstances sufficient for the court to revisit the parenting arrangements made after a contested trial in which considered reasons were ultimately given by the court. 

22. Nevertheless, I am conscious of the fact that the mother represents herself.  It may be that the mother has failed to appreciate at this time that she needs to meet a threshold, sometimes referred to as “the rule in Rice & Asplund” in respect of parenting orders recently made by a court particularly after a contested trial and considered reasons.

23. That being the case, I have determined to set aside some time for the hearing of what might be described as the threshold question, namely, whether there is sufficient change of circumstances so as to justify a revisiting of the orders made relatively recently by this court. 

24. I have made it plain to the mother that it is not the task of this court to provide legal advice.  Nevertheless, I have indicated to her that it is necessary for her to take such advice as she might consider appropriate and/or to undertake such research as she might consider appropriate with the specific aim of appraising herself of the requirements of “the rule in Rice & Asplund” and the subsequent authorities which have referred to it of which a couple are; King & Finneran (2001) FLC 93-079 and Miller & Harrington (2008) FLC 93-383; (2008) 39 Fam LR 654; [2008] FamCAFC 150.

25. I have made it plain to the mother that I have an expectation that she will file affidavits deposing to all such matters that she says constitute a change of circumstances sufficient to revisit the orders made by the court on the previous occasion. 

26. In that respect, I have today asked the mother to specify each and every change of circumstances which she asserts has occurred in the relevant sense.  She has listed nine.  They are as follows: 

    (1)At the time that the trial was heard and the orders delivered she “wasn’t under investigation”.  I gather this is a reference to the fact that, as she deposes, the Crime and Misconduct Commission is investigating an allegation against her that she committed perjury in the proceedings before me.  Quite what the impact of this is asserted to be is as yet unclear.

    (2)The mother says her health is worse now than it was at that time.

    (3)She says that she has only relatively recently been able to properly investigate what opportunities are available for her at the Sunshine Coast and/or the central coast area and/or Y.

    (4)She said she hadn’t visited the Sunshine Coast, save on approximately two occasions, and there was “no infrastructure there”, “there was no industry there”.  She indicated during oral discussions that she didn’t realise “how touristy” the Sunshine Coast was and described it as being “just like Airlie Beach”.

    (5)She says that she was not informed at the time that “her career path would be ceased” if she was to move to the Sunshine Coast.

    (6)She wasn’t told that she would “have to be demoted to move” to the Sunshine Coast.

    (7)She didn’t believe that her health would be affected by the outcome of the case – she didn’t know she had post-traumatic stress – she now acknowledges that.

    (8)She thought at the time that could have and would have been happy at the Sunshine Coast but she “now needs her family”.

    (9)Finally, she says that she needs “family support because of the stress that I am now under”.

27. I repeat in these reasons, a copy of which I will order to be prepared and forwarded to each of the parties, that it will be necessary for the mother on the next occasion to establish by evidence those matters which she says have changed in the period between the hearing of the trial and now.  

28. I also record that I gave the mother a number of opportunities during the course of hearing submissions from her, for her to enumerate, in broad terms, each and every matter which she says constituted the change in that time period.

29. Whilst it might be possible for me to make a determination about what I will conveniently call “the threshold question” of whether there has been a sufficient change in circumstances so as to justify the revisiting of parenting orders today, I consider that principles of natural justice demand that the mother should be given the opportunity to put such evidence and submissions before the court as she might wish in respect of that issue. 

30. With that in mind, I will make various procedural orders relating to a 19 May hearing and I will, as part of those orders, direct that the parties prepare written submissions with respect to both the legal and factual issues relevant for determination in the case on that occasion.

31. In the meantime, the evidence reveals that there has been no time spent between the children and their father since the mother has moved to T.  It will be appreciated that, by reason of the matters contained in my trial reasons, I consider that to be antithetical to the best interests of these children. 

32. In the report prepared urgently by Ms D she records a number of matters, many of which I have already dealt with in these proceedings.  I will request that Ms D make herself available for cross-examination on 19 May, but I again make the point, particularly for the self‑represented mother’s benefit, that the issue to be determined on that day is confined to whether the threshold question should be answered in the affirmative so as to allow the parenting proceedings to be revisited.

33. I find it interesting in the context of the case under discussion, particularly given what I had to say in my reasons, part of which I have earlier quoted, that Ms D says in her report:

    I am equally disturbed by the fact that [the mother] with her awareness that the children “are going to get to a point where they don’t want to travel” and thus spend time with their father as a result persisted with relocating to [T].

34. Ms D goes on to opine:

    In my opinion, this is a prime illustration of how [the mother] was not moved by her children’s interests but by her own needs.  Her decision incurred the children bearing the burden of travel directly (eg fatigue) and potentially costs them their future relationship with their father.  Despite this knowledge [the mother] persisted in prioritising her needs above the children.

35. I repeat, in that context, that I expressed concern at paragraph 172 of my trial reasons that, if the mother was separated from the father and his parents by a significant geographic distance, her willingness to promote and encourage a close and continuing relationship between the children and the father may wane. 

36. Ultimately, Ms D opines that it is her assessment that the parenting arrangements made by the court pursuant to orders made on 6 October 2009 should remain in place and that the parties attend a parenting orders program.  That is the position contended for by the father.  The mother, as I have said, seeks to re-agitate the issue of time and live with arrangements in respect of the children.

37. If she wishes to re-agitate that issue, she first needs to satisfy the court that there has been the requisite change of circumstances necessary to satisfy the legal principles involved.  It is, of course, for those reasons that I order as I do. 

38. I will not leave these reasons, however, without indicating that I am concerned that there have been some “ducks and drakes” going on in the household of the father.  Ms D says in that respect:

    Having said all of this [the father] is equally responsible for providing a resolution of the problems identified by [the mother].  [The father] is not seeking primary residence of the children, nor does he believe it is in their best interests. 

39. Ms D then goes on to quote a passage from my trial reasons and says:

    Therefore … I would advocate that [the father] needs to support the children by being more supportive of their mother in her care of them.  This may in turn serve to eliminate the reasons (or part of the reasons) [the mother] is desirous of relocating or, in this case, remaining in [T].

40. I record that an allegation by the mother is that the father’s mother may have been complicit in making a complaint to the Crime and Misconduct Commission that the mother has committed perjury. Quite how this could possibly been seen as assisting in the relationship between the children and their co-parents, each of whom they have a right to experience and enjoy, is quite beyond me. 

41. If I was to determine ultimately that the father and/or his parents are actively engaged either, consciously or unconsciously, in a process which sought to undermine what the father himself admits is the primary attachment of these children and their primary living arrangements, I can absolutely guarantee them that it is a matter about which I would be profoundly concerned.

42. For those reasons, I make the orders indicated earlier. 

43. Now, I am told that Ms D will not be available on 19 May because she will be away from the registry.  In any event, the matter will proceed without cross‑examination of her.  It seems to me that cross‑examination of Ms D is not essential to allow the determination of the threshold issue to be determined by me.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  10 May 2010