Kanavas and Vardalasos

[2008] FamCA 558

FAMILY COURT OF AUSTRALIA

KANAVAS & VARDALASOS [2008] FamCA 558

FAMILY LAW – WITH WHOM A CHILD LIVES – RELOCATION– Child and parenting issues – Interim

Family Law Act 1975 (Cth)

APPLICANT: MS VARDALASOS

RESPONDENT: MR KANAVAS

FILE NUMBER: MLC 5221 of 2008

DATE DELIVERED: 11 JULY 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: YOUNG J

HEARING DATE: 11 JULY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS McCREDIE

SOLICITOR FOR THE APPLICANT: CALEANDRO GUASTALEGNAME & CO

COUNSEL FOR THE RESPONDENT: MS LESLIE

SOLICITOR FOR THE RESPONDENT: KENNA TEASDALE

ORDERS

IT IS ORDERED

1. That until further order the mother be and is restrained from removing the child born … June 2005 (“the child”) from the State of Victoria or from permitting or causing any other person from so removing the child.

2. That neither the mother or father are to make application for any passport for the child without the prior written agreement of the other first obtained.

3. That all extent applications are adjourned for Mention before Young J on Monday 4 August 2008 at 10:00am.

4. That on or before Tuesday 29^th July 2008 each party is to file and serve any updated affidavit in support of orders now before the Court.

5. Liberty be reserved to either party to apply on proper material filed and served but only upon obtaining the leave of a Registrar of this Court and only in the event of real and genuine urgency.

6. That the father’s costs of this day fixed in the sum of $1200 but any question of payment is to be determined on the adjourned hearing date, if appropriate.

7. That the father have leave to issue subpoenae for the production of documents and that any such subpoenae be made returnable in the Subpoena Clerk’s List on Tuesday 29 July 2008 at 9:30am.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel for the mother and solicitor appearing as counsel for the father.

IT IS NOTED

A.The Court did intend to make an order pursuant to Section 13C of the Family Law Act 1975, at the request of the father but the mother instructed her Counsel to advise the Court that she would not cooperate or comply with any required counselling or dispute resolution.

B.That both the mother and father were in Court when reasons for judgment were delivered and when the orders were pronounced and each of them accordingly has specific knowledge of all matters said in Court this day.

C.THAT the solicitor for the husband advised the court that they intended to issue up to seven (7) subpoenae to be directed to Victorian higher education providers.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5221 of 2008

MS VARDALOSOS

Applicant

And

MR KANAVAS

Respondent

REASONS FOR JUDGMENT

1. The matter of Vardalosos & Kanavas is before me in the Judicial Duty List.  Ms McCreadie of counsel appears for the mother, Ms Leslie, solicitor, appears for the father.  The initiating application was filed personally by the mother on 10 June 2008.  In that handwritten document and in her affidavit in support thereof, the court was advised that the mother had accepted an undergraduate place on a midyear intake to study in Queensland and that she immediately wished to depart Victoria with the only child of their relationship and thereafter reside in Queensland for the duration of her course.  The child was born in June 2005. 

2. There are current orders of this court that were made after a defended hearing by her Honour Moore J on 8 March 2007.  I have been referred to those orders and the comprehensive reasons for judgment.  I observe that in the hearing, both parties were represented and there was an Independent Children's Lawyer appointed to act for the child. 

3. With that initial background and at the commencement of proceedings today, an amended application for final orders was presented to the court and leave to file was granted.  In addition, there was a further affidavit of the mother which I have read.  That affidavit sets out briefly the past marriage of the parties which occurred in November of 2003 with a divorce being pronounced in October of 2006.  The affidavit identified in paragraph 5 and thereafter the proposed reasons for the mother to travel to Queensland as a matter of urgency.  Indeed, this case was open to me on the basis that next Monday, that is three days hereafter, the mother and child will intend to travel to and live in Queensland to commence studies.  The proposal is that a serviced apartment or other suitable accommodation would be obtained and that the child would likely attend a day care centre located on campus or other facility nearby.

4. The proposal of the mother was that the father could have contact each four  months for a period of a week commencing in November of this year and otherwise by telephone.  Somewhat remarkably, the application also sought that the travelling costs of such time to be spent by the father with the child would be paid equally, notwithstanding what the mother on any view would see as her unilateral move from Victoria.

5. A response has been filed by the father on 23 June 2008 seeking a restraint upon the mother from changing the residence of the child.  In support of that response, there is an affidavit of the father filed 23 June 2008.  That affidavit sets out a detailed background of the brief marriage and of the issues of and concerning their daughter and of course the material that was before the court and the determination by Moore J made in March of last year.  Additionally, there is correspondence annexed to the affidavit to set the flavour of the current relationship between the parties and the issues of and concerning their daughter.

6. I have read the material and I have heard submissions from both counsel.  What is fundamental is that the earlier court hearing of March 2007 was comprehensive.  The orders are substantial and the reasons for judgment clear and concise.  I have been referred to particular paragraphs of that judgment by Ms Leslie and in that context, I have read the background provided for in paragraphs 23-26 inclusive of the judgment and more particularly, some of the findings and observations of the court that are detailed within paragraphs 86-95 of that judgment.  In particular, highlight was directed to paragraphs 91 and 92 and the findings of her Honour which said:

   It is clear that the mother has a very firm view that the father has little to offer his daughter and any proposals there put by the mother were seemingly reluctantly extracted and demonstrated no insight into the child's relationship with the father and instilled no confidence that she would support any outcome to these proceedings other than her view of it.  These attitudes are inconsistent with her parental responsibilities, including her responsibility to facilitate a relationship for [the child] with her father.  The prospect of change is bleak.

7. With that background, it is not surprising that there has been a number of ongoing issues between the parties.

8. The affidavit of the mother highlights her necessity to make decisions for herself and to establish a new life with her daughter in Queensland.  There is, however, current operative orders for the father to spend time with his daughter.  They are not insubstantial.  Currently they facilitate a period from 5.00 p.m. each second Friday until 6 pm Sunday and other special occasions, including religious holidays, Father's Day and the like.  These are spelt out in very specific detailed orders.  There are further orders for time to be spent on the child commencing school.  What is abundantly clear from the crafting of the orders is that they were meant to be long term.

9. If, of course, the child is taken out of Victoria to live with her mother, the current orders are wholly frustrated.  In many cases there is a balance needed and often the primary parent is allowed to travel interstate for very good reasons.  Often that may relate to health issues or an established new relationship or meaningful work.  I do understand the mother's evidence is or, more extensively, could be said to be that she has otherwise applied for university acceptance in Victoria, but all that is currently on the table is that received from the Queensland institution. 

10. In the context of this case, there are certain priorities for the mother and they include to put her daughter first and to understand the relationship of daughter and father that is of importance.  It is integral to the operation of the Family Law Act.  It is well established by the previous orders.  It is detailed and the father is wanting to continue to partake in and enjoy such time with his daughter. 

11. With that background, it would be wholly inappropriate and particularly on short notice for the child to be removed from the State of Victoria abruptly and for an indeterminate number of years. 

12. I have expressed, during the hearing, a firm preliminary view on orders that are in the best interests of the child but always subject to further evidence.  I have emphasised that the child is the priority, and not the private concern or wellbeing of either mother or father, and I well understand that the mother sees her life as being wholly linked to her daughter.  At this stage, the daughter will most certainly not be leaving Victoria. 

13. How the matter may hereafter develop upon more substantial and timely evidence is a matter that can be addressed on a further hearing day. I did have a request from Ms Leslie to refer these parties to family counselling pursuant to section 13C of the Family Law Act 1975.  The court has a discretion to direct one or both parties to family counselling or to attend a family dispute resolution conference.  That should occur in this case.  The emotion, the conflict and the financial costs are going to become more and more substantial.  However, commonsense needs to apply and at this stage I am advised by her counsel that the mother will not cooperate with or involve herself in that form of counselling or dispute resolution.  I record her refusal to attend and in that context, I am not going to make orders that would be ignored.

14. The issue therefore is that faced with the application of the mother and her prior determination to move to Queensland, a structure has to be put in place where the child is secure and safe in Victoria, pending further order of the court.  She will of course continue to live with her mother and the current time spent with orders will apply. 

15. What I propose to do in this case is to adjourn the matter to a mention before me at 10 00 a.m. on Monday, 4 August 2008.  The matter will not be heard on that day.  By that day, the mother will have filed such further and better material outlining the extension of the offer from the institution in Queensland, if indeed that be the case, or otherwise better informing both the father and the court of her future plans. 

16. There are many associated issues with any intended move interstate, one of which is the separation of the child from her maternal grandparents.  That may or may not be a significant loss for the child.  That may well be a matter of real importance.  The concept of the mother residing in a serviced apartment in Queensland with the child in some form of care or creche is clearly a lesser alternative than the lifestyle that the child currently enjoys.  Again, I make no final finding in that regard because the material currently before me is scant and insufficient. 

17. I do emphasise to practitioners, and they may pass on to their clients, that any further material is to be filed and served in a timely fashion so that if the matter is before me for further direction on 4 August, both parties will be aware of all facts and circumstances in an appropriate time frame prior to that day. 

18. Overall, this case meets all of the tests and requirements to pronounce a restraint.  It is necessary and proper.  The welfare and best interests of the child require continued time spent with the father in Melbourne, though I do not interfere with the primary order that she is to continue to live with her mother.

19. I will have these reasons transcribed, placed upon the court file and made available to all parties.  I will reserve liberty to apply on proper material to both parties, but I cannot imagine a circumstance where the matter would be back before me prior to the mention date of 4 August 2008.  There is no level of urgency to the benefit of the child to be taken out of Victoria on the current information and balancing the most recent and substantial judgment of the court and the detailed reasons and findings therein.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young

Associate:      …

Date:              21 July 2008