Grimes & Cale

[2007] FamCA 1150

FAMILY COURT OF AUSTRALIA

GRIMES & CALE [2007] FamCA 1150

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time

FAMILY LAW – PRACTICE AND PROCEDURE – Transfer of proceedings

Family Law Act 1975 (Cth)

APPLICANT: Mr Grimes

RESPONDENT: Ms Gale

FILE NUMBER: HBC 1161 of 2007

DATE DELIVERED: 19 September 2007

PLACE DELIVERED: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 19 September 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr M. Trezise

SOLICITOR  FOR THE RESPONDENT: Ms Ryan

Orders

UNTIL FURTHER ORDER

1. THAT the father and mother have equal shared parental responsibility for the child  born … April 1996.

2. THAT the child reside with the mother.

3. THAT the child spend time and communicate with the father as follows:

   (a)For the first half of the May‑June and August‑September Tasmanian school holiday periods.

   (b)For a consecutive period of four weeks in each Tasmanian Christmas school holiday period, incorporating Christmas Day in 2008 and each alternate year thereafter.

   (c)       By regular telephone and Internet communication.

   (d)       Such other times and dates as is agreed between the parties in writing.

4. THAT these proceedings be transferred to the Townsville Registry of the Family Court, but I suspend the operation of this order for 21 days from today's date and I give either party leave to apply on seven days' notice to the other party and to the court and certify for counsel.

   IT IS DIRECTED

5. THAT a transcript of these reasons be taken out and placed on the court file.

6. THAT a transcript of cross‑examination of both parties be taken out and placed on the court file.

   IT IS CERTIFIED

7. THAT pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 1161 of 2007

MR GRIMES  

Applicant

And

MS CALE

Respondent

REASONS FOR JUDGMENT

1. These are proceedings between Mr Grimes ("the father") and Ms Cale ("the mother"). The proceedings relate to a child who was born in April 1996 and is aged 11.

2. The essence of the proceedings are that the father seeks to have the child remain in Tasmania pending the outcome of a final hearing, spending time with him but living with her mother.  The mother seeks to return to Townsville today having, as I understand it, booked fares and other material and the family spending some $6000.

3. The proceedings were commenced on Monday, 17 September 2007 by the father, and I gave leave for this matter to be listed for today, being aware of the arrangements with the boat today.  A response was filed by the mother today together with an affidavit in support, the father having filed his affidavit on 17 September 2007.

4. It has an unusual factual history which caused me concern in dealing with it in the normal way, that is, not allowing cross‑examination.  As it happened, I had some time today and I gave leave for both parties to cross‑examine the other.  Both parties being represented, they took that opportunity.

5. Initially, I acknowledge that counsel for both parties have moved extraordinarily quickly.  It is rare that an application can be dealt with on this short notice and that affidavits are prepared, witnesses cross‑examined, all within the period of two or three business days, which reflects well on the approach of counsel to both parties and, irrespective of the outcome, both parties are fortunate that they have legal representatives who are able to so appropriately deal with urgent matters.

6. The father is aged 34.  The mother is aged 32.  They lived together, on the father's evidence from 1990 to 1997, on the mother's evidence from 1994 to 1998.  Not much hangs in terms of those dates.

7. Since the parties separated in either 1997 or 1998, the mother has re-partnered.  She met Mr Cale in 2002 and commenced cohabitation with him in about 2003.  She and Mr Cale married in December 2004, and there is one child of that relationship, S, who was born in November 2003 and turns four later on this year.

8. This is an interesting matter at some levels in that there appear to have been no proceedings between the parties.  They have managed, to their credit, to resolve issues of care of the child without the intervention of the court and the first proceedings were commenced on 17 September 2007.

9. There is no issue that both of the parties have significant family in Tasmania and that in about March 2004 the mother's present husband wished to return or re-enlist in the defence forces, and the parties entered into a written agreement enabling the mother to move to Queensland with the child for a period of up to four years.  That was evidenced by a document signed by the parties and annexed to one of the affidavits.

10. The mother and Mr Cale moved to Queensland.  Mr Cale did not remain in the defence forces but took other employment and the father acquiesced that step.  In late 2006 the mother, Mr Cale, the child and S returned to Tasmania.

11. I gave leave for cross‑examination in relation to a number of areas because of the difficulties in this matter, and one of the first of those was whether the mother had returned permanently to live in Tasmania or whether she had returned for a short period of time as she suggested.

12. The father's evidence is that he had believed that she had returned to Tasmania permanently.  The mother's evidence was that at all times it was only to come back here to, as it was, gather themselves and then go back to Townsville.

13. When they came back here, there was an issue as to whether the child stayed with her father for three weeks or five days as suggested by the mother.  The father in evidence resiled from his material in his affidavit and said that the child stayed with him for about a week and a half at either his home or at the home of his girlfriend.

14. The child was then enrolled in her old school and remained there until the end of second term when she was removed from school in anticipation of a return to Townsville.

15. The communication between the parties is not their strong suit.  Mr Cale went to Townsville a few months ago with a view to arrange some contracts so he could return to that town with his family.  The evidence of the father was that he knew at that time that the mother was planning to leave the state.  My recollection is that he said in evidence-in-chief that he said he did not consent at that stage.  The mother's evidence is that the father prevaricated and said, "We'll talk about it later."  What is clear, of course, is that the father knew from that time, at least, that the mother and the child were proposing to move to Townsville.

16. In late August 2007 there is no issue that there was a telephone discussion between the father and mother when the mother said that they were going back to Townsville, and whilst they do not agree with what was said, it was made clear in that conversation to the mother that the father objected to that course.

17. Interestingly, and perhaps consistently with the way these people operated, and no way in criticism of them, neither of them rushed to a lawyer, although both of them considered the other ought to have done so.

18. The mother waited a week, and then not hearing anything, booked the passage back across Bass Strait and for the return to Townsville, informed the father of that, according to her, arranged for the child to be removed from school, and started packing up their house.

19. There was an issue before me as to the impact of the changes in school on the child, and that is a factor that will be significant in terms of a final hearing, but not a huge factor today as it would appear that either way the child will either remain in her old school in Tasmania, or go back to her school in Townsville with the same group of friends.

20. The father says that the child has told him that she does not wish to go, but does not want to tell her mother.  The mother says that the child's view, bearing in mind her age and maturity as such, that she changes from one day to another.

21. The approach I am required to adopt is that which is set out by the Full Court in Goode & Goode, which is to identify the competing proposals of the parties, identify the issues in dispute, which I have, which is the return to Queensland, identify uncontested fact, and I have endeavoured to do so in my preamble, and if I have made any factual error, I invite counsel now to tell me.  Neither counsel makes submissions in relation to my outline of the facts.

22. This is a matter where presumably the presumption under section 61DA applies.  Therefore, I will be making an order that the parties have equal shared parental responsibility for the child.  That does not mean that the child spends equal time or significant or substantial time with either parties, although I will have regard to that bearing in mind the decision I come to.

23. I am obliged to consider the objects and principles under section 60B, and in doing so having regard to the best interests of the child as the paramount but not sole consideration in determining this matter, having regard to the factors and considerations set out under section 60CC of the act.

24. The first of those is the benefit of the child having a meaningful relationship with both the child's parents.  In this case there is not an issue that the principle carer of the child is her mother, and she has been for some years.

25. There is an issue as to the involvement of the father with the child prior to the child's return to Tasmania in late 2006, and some issues as to the time spent with the child since that time.  I do not make any finding with regard to subsequent to her return, although it seems to me that it is not an issue that she had limited time with her father prior to the return.

26. There are no issues as to the need to protect the child from physical or psychological harm, or being subjected to abuse, neglect or family violence.

27. As to the views of the child, she was here at court today and I at one stage ruminated that I may speak with her, but there was no family consultant about and it does not serve the court well to simply have judges leap in and interview children without training and experience to do so.  There may be things said which a social scientist would have ability to properly determine, that a judge may not have that.  So I declined to see her.

28. The father's evidence is that the child wishes to remain in Tasmania.  The mother's evidence is that the child is ambivalent, changing from one day to another, and both evidence is probably consistent with the views of an 11‑year‑old who is having to change, make a fairly significant change, make a change in her life.

29. In terms of the nature of the relationship of the child with each of the child's parents, as I have indicated, the mother is the primary carer of the child.  The father sees the child on a regular basis, although I am not able to say as to the extent of that relationship, although it must have improved in the last nine or 10 months.

30. There is also the consideration of the relationship of the child with Mr Cale and, more importantly, with her sister, S.  I infer on the material before me that the children have a good relationship. The child has many relatives and family from both sides in Tasmania.

31. On the material before me, apart from poor communication as an issue, it is clear that the mother has been willing and has had the ability to facilitate and encourage a close continuing relationship between the child and the father.  The effect of the mother's outcome is that the child is going to be significantly isolated from the father for most of the time, and in reality the only time she can spend with her father will be during school holidays.

32. There is the practical difficulty of moving from Townsville to Tasmania, although I note the mother has indicated that she will meet the costs of the airfares.  There are no issues, it seems to me, as to the capacity of the mother.  There is an issue as to the capacity of the father, although in terms of the orders he is seeking, it is only of limited weight bearing in mind the mother proposes that the child spend time with him, including overnight time from Queensland.

33. There is no history of family violence.  Both parties have managed to keep this out of court so far.  I am not sure where it will go from here.  There is no doubt that the mother has fulfilled her responsibilities as a parent, apart from both parties being unable to properly communicate about the events that have occurred in the last few weeks.

34. Having heard the cross‑examination, I am satisfied on balance that the mother did not intend to return to Tasmania on a full‑time basis.  There is no issue that she gave notice and that the husband, at least in August, indicated his opposition, and both parties not having knowledge of legal proceedings waited each for the other to make applications, and each assuming that if the other did not, that their view would prevail.

35. I have had regard to the events that have occurred since separation.  As I have said earlier, this is not the easiest of cases.  However, having regard to the material before me and the material which was the subject of cross‑examination, it seems to me that the child should be allowed to go to Townsville with her mother and her sister pending the outcome of these proceedings.

I certify that the preceding 35 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin.

Associate

Date:  19 September 2007