Hemming and Sims

[2008] FamCA 1241

FAMILY COURT OF AUSTRALIA

HEMMING & SIMS [2008] FamCA 1241

FAMILY LAW – CHILDREN – relocation – one party seeking to restrain the other from relocating with a child of the marriage despite previous consent orders allowing the specified relocation

Family Law Act 1975 (Cth)

APPLICANT: Mr Hemming

RESPONDENT: Ms Sims

FILE NUMBER: HBC 776 of 2007

DATE DELIVERED: 2 October 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 2 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person via video link

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: Ms L. Peacock via video link

SOLICITOR FOR THE RESPONDENT: Simmons Wolfhagen

Orders

1. Paragraphs 1, 2 and 3 of the father’s application filed on 26 September 2008 and paragraphs 1, 2 and 3 of the final orders sought therein be dismissed.

2. Paragraph 4 of the said application for final orders be referred to a Registrar for the making of all orders and directions necessary and referral of the said application to a Judge of the Court to determine on a preliminary basis whether there has been a significant change of circumstance such as would warrant preparation of this matter for full trial.

3. The father pay the costs of the mother of this application fixed in the sum of $600 with a stay of 3 months.

4. General liberty be reserved to both parties to apply.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: HBC 776 of 2007

MR HEMMING

Applicant

And

MS SIMS

Respondent

REASONS FOR JUDGMENT

1. This application comes before me in the Judicial Duty List and seeks essentially that the mother be restrained from leaving Tasmania without the father's permission.  While it seems to be cast in that way I am reading the application as being an application for an injunction, at least in part, against the removal of the younger child of the parties, L, born in November 2000, from Tasmania.

2. This matter has a most regrettable history, the most concerning feature of which has been ongoing expressions of aggression and threats by the applicant father towards a member of this Court, a member of the Federal Magistrates Court and towards staff of the Court.  He has written a number of emails, including two or three to me, which have been quite abusive and threatening.

3. The long history of these proceedings seemed to come to an end when in Hobart on 21 April 2008, in the expectation that there was going to be a defended hearing between the parties as to their two children - L and the older child T, born in August 1995 - the parties actually agreed to orders which I made on that day.

4. Both on that day and before me today the father, who has appeared in person, has been a very different to the person who expresses himself in the violently aggressive and threatening emails to which I have referred.  The essence of the orders made in April is that the child T continue to live with him, and the child L lives with the mother.  In particular, paragraph 5 of the order provided that "the father's application to spend time with [L] be dismissed".

5. There was an order for T to spend time with her mother as agreed, and the father was to facilitate contact between T and her mother, and contact in Brisbane to be as agreed in writing.  The reference to Brisbane is a direct reference to paragraph 7 of the minutes in the following terms:  "that the mother be permitted to relocate from Hobart to Brisbane with [L]".

6. Various arrangements were made for L to visit Hobart at least twice a year and have contact with T but there is no arrangement for L to spend any time or communicate with her father.  Entirely understandably, from his point of view, this is a matter of great distress for him because the breakdown of any relationship between parent and child is an extremely distressing event.  However, those orders were agreed to by the father. 

7. To the extent that the present application seeks a restraint against the mother from removing L from Tasmania, given paragraph 7 of the order quoted above, there would appear to be no breach.  I am informed by counsel for the mother that the mother intends to travel to Western Australia with L for a holiday but in those circumstances it does not appear that that is any breach of the order which would be susceptible to an injunction.

8. If, on the other hand, the mother were to relocate not to Brisbane but to another part of Australia, that may well be a matter for the active consideration of the court and in some circumstances perhaps for enforcement.  However, that is not the fact situation here and, accordingly, what I have just said is only hypothetical.

9. In the circumstances, as difficult as I know that the father finds this matter, there is no cause to grant the injunctive relief sought by the father.  I know that he says - and I have no reason not to accept - that from his point of view he agreed to the order not to spend any time with L on the basis that he hoped that the mother would exhibit what he refers to as good will towards him and what he says has not occurred.  That is not a matter on which on the present state of the orders of the court I am in a position to interfere.

10. Accordingly, while as I say understanding the position of the father, it seems to me to be inevitable that this application must be dismissed and I will order accordingly.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate: 

Date:  21 April 2009