Fitzroy and Fitzroy (No 3)

[2010] FamCA 867

FAMILY COURT OF AUSTRALIA

FITZROY & FITZROY (NO. 3) [2010] FamCA 867

FAMILY LAW – CHILDREN – Minutes of Consent refused

Family Law Act1975 (Cth) s 63C(2)

Rice & Asplund (1979) FLC 90-725
SPS & PLS [2008] FamCAFC 16
Harris & Caladine (1990) FLC 92-130

APPLICANT: Mr Fitzroy

RESPONDENT: Ms Fitzroy

INDEPENDENT CHILDREN’S LAWYER: Mr Grant

FILE NUMBER: BRC 5947 of 2008

DATE DELIVERED: 7 September 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 7 September 2010

REPRESENTATION

THE APPLICANT: No appearance

THE RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Grant of Grant & Associates

Orders

IT IS ORDERED THAT

1. All applications for orders in respect of parenting issues be dismissed and removed from the list of cases awaiting finalisation.

2. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

3. The Independent Children's Lawyer be discharged.

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 19 May 2010, I made orders that were accompanied by ex tempore reasons.  Those orders and reasons occurred in respect of an application and cross-application made by the parents of these children in the circumstances described within those reasons, which, for present purposes, can be described as the mother unilaterally relocating with the children to the T area on the central Queensland coast one week after orders were made by me consequent upon a full parenting trial.

2. When that the matter came before me on 19 May, there were applications that can be broadly described as contravention or enforcement applications which were eschewed in favour of seeking to address issues that might have more direct relevance to specific parenting orders.

3. It is to be observed that, in an application filed on 4 March 2010, the father had sought orders expressed to be by way of enforcement of the orders made by me after a trial, the effect of which was that the mother would be compelled to relocate the children to the Sunshine Coast area by a specified date. 

4. The mother had given sworn evidence at the trial that she intended to relocate to the Sunshine Coast area, that she had made inquiries about the possibility of work in that area, that she had contacted the relevant personnel by whom she is employed. She swore that, although she had not ascertained whether there was a position at any particular office, that there was a large number of offices within that area that would have a need for the services which she could provide. 

5. As I have said, one week after orders were made by me consequent upon the trial, the mother relocated with the children to the T area.  She says this occurred consequent upon advice, and consequent upon she herself having read the orders and the reasons.

6. As I said in my earlier ex tempore reasons, quite how one could read the trial reasons for judgment and conclude that the Court considered it appropriate for the children to do as much driving as what the mother says she intended for them to do if she lived in the T area and complied with the orders is utterly beyond me. 

7. That is all the more so when consideration is given to what passed from the Court during the course of the hearing where the Court specifically, and very clearly, spelled out the concerns that the Court had about children of this age undertaking as much travel as that which those proposals contemplate.

8. I thought I made it clear in the ex tempore reasons delivered on 19 May what I considered was a position consistent with the children’s best interests. 

9. There were concerns expressed at the time that related to what might conveniently be described as the rule in Rice & Asplund.  Plainly, that so-called rule arose for consideration by reason of the fact that issues that might be seen to be very similar to those which were the subject of a trial that had taken place some six months or so earlier were again being raised. 

10. Ultimately, however, for reasons given at the time, I concluded that there probably was sufficient change in circumstances so as to allow the issue of parenting orders to be reagitated.  Indeed, I made the comment in those earlier reasons that such a conclusion seemed to arise from the father’s submissions as much as it did from the mother’s.

11. In arriving at that conclusion, I referred to a decision of Warnick J in SPS & PLS.  I said in my earlier reasons:

    The issue here is not what might be the merits or demerits of the respective cases in respect of the best interests of the children.  Rather, the issue is whether sufficient evidence has been placed before the Court so as to satisfy the Court that there has been a sufficient change of circumstances sufficient to “justify embarking on a hearing”.

12. Ultimately, having concluded that there was a sufficient change of circumstances sufficient to justify that, I ordered that an independent children’s lawyer be appointed.  Mr Grant appears before me this morning consequent upon that appointment. 

13. It needs to be noted that, in the application by the father filed on 4 March 2010, he proposed as an alternative to what might conveniently be described as “enforcement orders” orders that, in broad terms, provided that if the mother “refuses or neglects to relocate the children to the Brisbane/Sunshine Coast area by 1 April 2010” there should be a significant change in the live-with and time arrangements for the children.  In particular, an order was sought by the father that the children live with him.

14. I would have thought that, consequent upon the matters raised in my initial reasons for judgment given after a trial, and the ex tempore reasons for judgment given on 19 May 2010, that it would be appreciated by both the father and the mother that the Court considered that a very real issue had arisen about with whom the children should live. 

15. That is to say, if the Court determined that the travel arrangements arising from the implementation of the orders – consequent upon the unilateral actions of the mother contrary to her sworn evidence during the trial – was considered to be contrary to the children’s best interests, then the issue of with whom the children should live might need to be revisited. 

16. That is what the application of the father sought, and, plainly enough, a decision by me that the rule in Rice & Asplund had been overcome made that a live issue at any future hearing.

17. Events, though, seem to have overtaken.  Consequent upon his appointment, Mr Grant engaged in email communications with the father.  A number of things arise from those email communications, not the least of which is the father’s exasperation with what might be conveniently called the Family Court system and, it should be said, with me in particular. 

18. As an example, the father says:

    The last time back in Court [referring to the proceedings before me on 19 May 2010] Justice Murphy basically let a self-confessed suicidal mental case take the boys back to a locating far and beyond his previous orders.  Where is the justice for normal person “taxpaying citizen,” and as long as my arse points to the centre of the earth I WILL NOT subject my children to the clown show in the middle of the city again, you can thank Justice Murphy for wasting my time and $52,000 for no show and letting down the boys.

19. The frustration experienced by the father is manifest in those comments, and comments of a similar type are repeated in the other email communications tendered by Mr Grant this morning, which I have, in these proceedings, marked as Exhibit ICL1. 

20. The frustration felt by the father is, in my view, understandable.  It may also, however, evidence a less than complete understanding of the position he confronted by reason of the orders and reasons made and delivered respectively on 19 May 2010. 

21. As but one example, the orders contemplated the appointment of an independent children’s lawyer, who, by definition, would form an independent view as to the best interests of the children and would seek to obtain evidence from experts and others who might be considered to be directly relevant to the issues again enlivened by my decision on 19 May 2010.

22. In any event, (one might observe, perhaps unfortunately although equally understandably) events have overtaken, and it transpires that, as is evident from the emails constituting exhibit ICL1, the father is now living in China.

23. It is not clear whether his daughter of an earlier relationship has gone with him, nor is it clear from the correspondence whether the decision to go to China was made irrespective of any decision which would or would not have been made in respect of an application that the two children live with him. 

24. In particular, the father says:

    I ain’t coming back until October some time;  that could change.  I have made my decision to come to China.  It was a decision that is going to impact on the boys, but I just can’t do the Court thing any more.  If Justice Murphy won’t sign it, so what.  I will never go back in front of him unless I am dragged in by my hair and what then, another excuse from [the mother]?  I am over it.

25. The reference to my “not signing it” is a reference to the fact that the father and mother have between them signed and dated a written document entitled “Minutes of Consent”. Mr Grant has informed the father that he is not prepared to agree to orders being made in terms of that consent.  It is that which plainly causes the father to make reference to me “not signing it”. 

26. The mother says that those minutes of consent should be made orders by consent, thereby bringing an end to the respective applications. 

27. As the High Court made clear in Harris & Caladine, the process of making consent orders involves the exercise of judicial (or, in many cases, quasi-judicial) discretion and is a judicial exercise that signifies the determination of what is in the children’s best interests. 

28. I refuse to make the orders by consent. 

29. The reasons for failing to do so will be plainly obvious from the reasons for judgment made in the trial and the subsequent reasons delivered ex tempore on 19 May 2010.  In short, I do not consider that the “agreement” embodies orders which are in the best interests of these two children.

30. It is plain that the parents can agree on such arrangements as they consider appropriate in respect of the children. As Mr Grant points out, correctly, in my view, because the document is in writing, is signed and dated by the parties, and deals with the matters referred to in s 63C(2) of the Act, the document signed by the parties can constitute a parenting plan.

31. Accordingly, it can govern the rights as between the parties for so long as they continue to agree to implement the parenting plan. 

32. It is quite another thing, however, for the Court to give its imprimatur to orders which it does not consider to be in the best interests of the children. 

33. It is for those reasons that I refuse to make orders in the terms of the document entitled “Minutes of Consent” signed and dated by each of the parties. 

34. I should also point out that, if I was to make those orders by consent, it may be that, should the need arise for litigation in this Court to occur in the future one or both parties may need to overcome a “Rice & Asplund” problem in respect of the orders which would be made by consent.

35. It seems to me inappropriate that either party, and in particular the father, should confront that, as it were, hurdle in circumstances where he sought to make an application in the future pertaining to the best interests of these two children. 

36. For all of those reasons, I refuse to make the Minutes of Consent as orders by consent.

37. That leaves the question of what should occur.  The father makes it plain that he presently has no intention of participating in future proceedings.  There have been prior applications and responses filed by him and filed by the mother. 

38. I am not prepared to make, in the best interests of the children, any of the orders contained in those initiating applications and responses, and the parenting of these children will be left to such (formal or informal) agreed  arrangements as can be arrived at between the parties pending any future action by either of them in this Court. 

39. There is an overriding obligation upon the Court to bring the proceedings to an end as expeditiously as possible.  I propose to do that.  The orders sought in all previous applications and responses are respectively dismissed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 7 September 2010.

Associate: 

Date:  29 September 2010