HARVARD & MOORE

[2015] FamCA 673

FAMILY COURT OF AUSTRALIA

HARVARD & MOORE [2015] FamCA 673

FAMILY LAW – PARENTING – relocation to adjoining town

APPLICANT: Mr Harvard

RESPONDENT: Ms Moore

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 4532 of 2012

DATE DELIVERED: 3 June 2015

PLACE DELIVERED: Melbourne

PLACE HEARD:

JUDGMENT OF: Johns J

HEARING DATE: 3 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Meehan

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Baczynski

SOLICITOR FOR THE RESPONDENT:

Orders

1. That upon proof that the children, B born … 2009 and C born … 2011 have been provided with a separate bedroom and beds at the property at D Street, E Town, then and subject to such proof being provided, paragraph 5 of the Order made 22 May 2012 be varied to permit the Applicant and children to relocate to the said property.

2. That the proof referred to at paragraph 1 shall be:

   a.plans of the proposed bedroom; and

   b.a photograph of the completed bedroom and separate beds,

   such proof to be forwarded by the Applicant to the solicitor for the Respondent.

3. That all changeovers with respect to time spent with the Respondent will continue at K Town unless otherwise agreed between the parties.

4. That pending relocation pursuant to these Orders, the children will remain primarily resident at F Town and spend no more than two nights at E Town per week.

5. That all extant applications be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harvard & Moore has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4532 of 2012

Mr Harvard

Applicant

And

Ms Moore

Respondent

REASONS FOR JUDGMENT

1. The parties have come before me today in a Judicial Duty List.  The application is brought by the mother by way of Initiating Application filed 14 May 2015.  That application is supported by an affidavit of the mother also filed 14 May 2015. 

2. The application of the mother is that there be a variation of final orders previously made on 22 May 2012 to enable her to move with the two children of the relationship from her home in F Town to E Town in western Victoria. 

3. That application was opposed by the father, he filing a Response to Initiating Application and an affidavit in support on 29 May 2015. 

4. The background to the matter is as follows.  The mother is aged 40 years.  She lives in F Town with the two children of the relationship.  She is employed as a consultant. 

5. The father is aged 41 years.  He is employed in Melbourne as a foreman and lives in Suburb G. 

6. The parties commenced cohabitation in about 2008 and separated in July 2011.  Theirs is a relationship of some three years. 

7. There are two children of the relationship, B, who is almost six years of age, and C, who is four years of age. 

8. Final orders were made by consent on 22 May 2012.  Those orders provide that the parties have equal shared parental responsibility for the children, that the children live with the mother and that the father spend time and communicate with the children for specified times having regard to their ages and stages of development. 

9. The parties have adhered to those orders, and currently the father spends time with the children on an alternate-weekend basis.  He has sensibly adjusted his employment arrangements to ensure he is available to spend time with the children commencing early on Friday afternoons, and he is to be commended for his approach in that regard. 

10. Paragraph 5 of those orders provides that the mother be restrained by injunction from relocating the children any further west of Melbourne than F Town unless by prior agreement between the parties.

11. In 2013 or thereabouts, the mother formed a relationship with Mr H.  He resides approximately 10 kilometres from F Town, in E Town.  The mother’s position now is that she wants to progress that relationship and to commence living with Mr H in his home.  He has three children from another relationship who also live in that home for periods of time.  It is a three-bedroom residence. 

12. Currently, when the mother and the children stay with Mr H in that home, the children are sleeping on trundle beds in the living room of the home.  What the mother proposes is that she will apply funds that she has from the sale of a property in I Town to renovate the home such that her children, the children of the relationship the subject of these proceedings, will have their own bedrooms and their own beds at that property.  That will ensure their comfort and privacy in this new living arrangement. 

13. The move to E Town does not represent any other change in the children’s lives.  They will continue to attend their usual schools and kindergarten and day care.  Further, they will continue to spend time with their father, as has been the case since the final orders were made.

14. The matter was stood down at the commencement of the day to enable the parties to have some discussion.  That discussion narrowed the gap between them significantly.  However, there still remained a dispute as to whether or not the father should be permitted to undertake a physical inspection of the proposed renovations. 

15. The mother’s position is that she will not relocate to the E Town property until such time as the renovations are complete, that she will provide proof of completion by virtue of the plans for the bedroom, together with photographs of the completed bedrooms and separate beds.  Once those documents have been provided to the father, the mother proposes to move to those premises.  Pending that move, she consents to an order that she not spend more than two nights per week at the E Town property. 

16. I am satisfied, in the circumstances of this case, that the mother’s proposals are appropriate and that they are arrangements which are in the children’s best interest.  They will ensure that he children do not change their residence until the renovations are complete and that the father will be informed of those changes.

17. I am satisfied that the father’s proposal that he inspect the mother’s new home prior to relocation is contrary to the children’s best interests.  The prospect of the father inspecting the home in circumstances where he does not know or have any relationship with Mr H is likely to be inflammatory.  It is a proposal that could expose the children to conflict unnecessarily. 

18. These parties have worked productively and cooperatively for the past three years in parenting their children.  They have orders that have worked.  It is important that the father be informed of any significant changes in the children’s lives.  It is important that the mother ensures that he is kept informed of changes before they occur.  It may well be that, had information been forthcoming, regarding the proposed changes to her living arrangements, the proceedings today may have been avoided. 

19. There also needs to be regard for the position of the mother as primary caregiver to make decisions to ensure the best interests of the children.  I am satisfied that the mother’s proposals are in the children’s best interests and I will make orders so sought by the mother. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 3 June 2015.

Associate: 

Date:  3 June 2015