HOLMES & HOLMES (No.2)

[2015] FCCA 1405

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOLMES & HOLMES (No.2) [2015] FCCA 1405

Catchwords:
FAMILY LAW – Children – relocation – Application in a Case –  application for undertaking not to relocate residence of children – insufficient evidence – application unnecessary – application dismissed.

EVIDENCE – Inadmissible – “Calderbank” letter – letter marked “Without prejudice save as to Costs” inadmissible – proceedings not related to costs.

Legislation:

Evidence Act 1995 (Cth), s.131

Family Law Act 1975 (Cth)

Cases cited:
Holmes & Holmes [2014] FCCA 2634

Applicant: MR HOLMES

Respondent: MS HOLMES

File Number: SYC 5125 of 2014

Judgment of: Judge Scarlett

Hearing date: 13 May 2015

Date of Last Submission: 13 May 2015

Delivered at: Sydney

Delivered on: 27 May 2015

REPRESENTATION

Counsel for the Applicant: Ms Clifton

Solicitors for the Applicant: David Landa Stewart Lawyers

Solicitor for the Respondent: Mr Manning

Solicitors for the Respondent: Manning Lawyers

ORDERS

1. The Application in a Case filed on 5 May 2015 is dismissed.

2. The parties are to pay their own costs.

IT IS NOTED that publication of this judgment under the pseudonym Holmes & Holmes (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5125 of 2014

MR HOLMES

Applicant

And

MS HOLMES

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application in a Case by the Husband seeking an order that the Wife give an undertaking not to relocate the residence of the parties’ children away from the (omitted) area of Sydney or remove them from their present school.

2. The wife opposes the Application as unnecessary and says that she has no current intention to relocate her current residence or remove the children from their current school. 

Background

1. The parties separated in February 2012. There are two children of the marriage, both boys, born on (omitted) 2006 and (omitted) 2007. They currently live with their mother and spend time with their father.

2. On 4 November 2014 the Court made interim orders[1] providing that:

   a)The parties were to have equal shared parental responsibility for the children;

   b)The children were to live with their mother;

   c)The children were to spend time with their father on various occasions during the school term; and

   d)The Application was listed for an interim hearing on parenting issues on 8 December 2014 the parties would have equal shared parental responsibility for the children.

   [1] Holmes & Holmes [2014] FCCA 2634

3. On 8 December 2014 the parties entered into interim consent orders providing that:

   a)The parties would continue to have equal shared parental responsibility for the children;

   b)The children would continue to live with their mother;

   c)The father would spend time with the children during the school term and for half of every school holiday period.

4. These Orders remain in force.

Orders Sought

1. The Husband, in his Application in a Case filed on 5 May 2015 seeks the following Orders:

   1.  Until further order, the Applicant/Wife give the undertaking not to relocate with the children of the marriage in the form annexed to this Application and marked “A”.

   2.  The lawyer for the Applicant/Wife be directed to give the Certificate contained within Part E of the form of undertaking.

   3.  The Respondent/Husband have leave to serve short notice of this Application and any supporting affidavits.

   3A.    The matter be listed for Interim Hearing on 13 May, 2015 at 10:00 am.

   4.  The Applicant/Wife pay the Respondent Husband’s costs of an incidental to this Application on an indemnity basis.

2. Annexed to the Application is an Undertaking in the following terms:

   1.  I shall not relocate from the (omitted) area with either or both of the children of the marriage, namely X born (omitted) 2006 and Y born (omitted) 2007 (the Children) unless I am so authorised by order of the Court or with the written consent of the Respondent father; and

   2.  I shall not unilaterally remove with or both Children from (omitted) Public School, unless I am so authorised by way of Court Order or with the written consent of the Respondent father.

Evidence and Submissions

1. The Husband relies on his affidavit sworn 4 May 2015.

2. The Husband deposes that:

   On Saturday 28 February 2015 I received a text message from the Applicant/Wife to the following effect:

   “and also just so you know, as you refuse to support your children you are forcing me to make some changes. I am looking at at (sic) schools on the (omitted) as I can’t afford to live here anymore and the settlement of the house is taking longer than expected. If you want to go look at the schools up there, let me know – otherwise I will let you know what’s best.”[2]

   A copy of that text message is annexed and marked “A”.

   [2] Affidavit of Mr Holmes  4.5 2015 at paragraph [5]

3. A print-out of that text message was indeed annexed to the affidavit and said exactly that. It is unclear why it was thought necessary to quote the text message in full in the body of the affidavit, as the print-out was annexed. It has long been said in Courts that documents speak for themselves.

4. Also annexed is a plethora of correspondence between the parties’ lawyers on various dates between 5 March and 30 April 2015, relating to a variety of issues, including the form of a proposed undertaking and whether or not the Wife would enter into such an undertaking.

5. Curiously, the letter from the Husband’s solicitors to the Wife’s solicitors of 5 March 2015 is headed ‘Without Prejudice save as to Costs’. It appears that this was intended to be a “Calderbank” letter, but it would appear to be evidence of settlement negotiations and therefore inadmissible in evidence under s.131 of the Evidence Act 1995 (Cth). It is clear that Calderbank letters are inadmissible in proceedings other than costs applications, which is not the purpose of the current application before the Court. This is so, notwithstanding the (rather curious) application for costs on an indemnity basis sought by the Husband should his Application be successful.

6. A letter dated 9 March 2015 from the Wife’s solicitors stated, relevantly:

   As to your client’s concerns. We are instructed that our client was discussing with your client the large expense for her to live in the (omitted). This is a general fact and given the minimal child support from your client and our client’s part-time employment, this fact would not be a surprise to your client.

   Our client has no intention to relocate to the (omitted) and any concern your client may have in this regard is unwarranted.

   The children are enrolled at school and are doing well and our client does not propose to disrupt them in any way.[3]

   [3] Affidavit of Mr Holmes 4.5.2015 Annexure “C”

7. The Wife has not filed a Response to the Application in a Case or an affidavit in support. However, her solicitor, Mr Manning, said that his client had no intention of relocating to the (omitted) or removing the children from their school. He said that the text message was equivocal and there was no evidence that she had taken any steps to move to the (omitted). He further submitted that if the wife just moved of her own volition and put the children into a school on the (omitted), she would be in breach of the interim parenting Orders which were arrived at by consent on 8 December 2014. He sought an adjournment in order to file an affidavit, which was opposed by Ms Clifton of Counsel for the Husband and refused by the Court.

8. Ms Clifton submitted that there was no prejudice to the wife in signing the undertaking not to relocate. If she was not relocating, why not sign, she asked rhetorically.

9. Mr Manning in reply said that this was a circular argument.

Conclusions

1. In my view, the Husband has not demonstrated a necessity for the Wife to be required to enter into an undertaking not to relocate away from the (omitted) area of Sydney or not to remove the children from their schools without consent or leave of the Court.

2. The evidence in support of the Application is flimsy, at best. True it is that the Wife sent an email to the Husband on 28 February 2015, saying that she was “looking at schools on the (omitted)” but there is nothing in the email to suggest that she had any immediate plans to relocate without first informing the Husband. She in fact suggested that he might care to join her in these investigations, saying “If you want to go look at schools up there, let me know – otherwise I will let you know what’s best.”

3. That is as high as the evidence goes. The Husband was made aware by the letter from the Wife’s solicitor of 9 March that she denied any intention to relocate or remove the children from their current school. It is significant that over the months of March and April and into early May the wife does not appear to have done anything at all in furtherance of her proposed plan to relocate. She may have changed her mind, or she may not have been serious in the first place.

4. If there was evidence that the Wife was about to relocate and unilaterally withdraw the children from their school, in defiance of the existing Consent Orders, why did not the Husband seek an injunction rather than an enforced Undertaking? The answer to that question, in my view, is that there was insufficient evidence upon which to base an application for an injunction against the Wife.

5. The fact is that this Application is entirely unnecessary. It is litigation for the sake of litigation, based on very flimsy grounds. The Application will be dismissed.

6. Very generously, in my view, the Wife’s solicitor told the Court that she was not seeking costs. Accordingly, even though the Husband has been wholly unsuccessful in his Application, I will order that the parties should pay their own costs. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date: 27 May 2015