Lansa and Clovelly

FAMILY COURT OF AUSTRALIA

LANSA & CLOVELLY

[2009] FamCA 1204

FAMILY LAW – CHILDREN – Parenting orders – International relocation – Leave granted to adduce updating evidence in substantive proceedings

Family Law Act 1975 (Cth)

APPLICANT:

Ms Lansa

RESPONDENT:

Mr Clovelly

INDEPENDENT CHILDREN’S LAWYER:

Ms Toomey

FILE NUMBER:

BRC

4856

2008

DATE DELIVERED:

24 November 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

24 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr P.J. Baston

SOLICITOR FOR THE APPLICANT:

Middletons Lawyers

COUNSEL FOR THE RESPONDENT:

Mr J. Linklater-Steele

SOLICITOR FOR THE RESPONDENT:

Rimmer Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr G.J. Fleetwood

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Schultz Toomey O’Brien Lawyers

Orders

IT IS ORDERED THAT

The oral application made today by Counsel on behalf of the father to adjourn the final hearing of this matter is dismissed.
The parties are granted leave to adduce oral evidence, updated in the case of the mother, and responding to, in the case of the father, the material contained in the affidavit of the mother filed on 29 May 2008.
The mother is not permitted to rely upon her affidavit filed on 7 October 2009.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4856 of 2008

MS LANSA

Applicant Mother

And

MR CLOVELLY

Respondent Father

EX TEMPORE

REASONS FOR JUDGMENT

At the outset of the final hearing of this matter, Mr Linklater-Steele, who appears for the father, applied for an adjournment. In its initial form, that application for adjournment was based upon the reliance, by the mother, on an affidavit filed and served by her on 19 November 2008, in respect of a trial due to commence before me today.
The late filing and service of that affidavit might be explained, at least in part, by reason of the fact that this matter had had some history in the Federal Magistrates Court and was transferred to this court relatively late in its life. As an example of that, an application by the mother for what might be conveniently described as “international relocation” was filed in that court in May 2008 – over 18 months ago.
The matter is only now coming on for trial in this court, but only by reason of this court having had the opportunity to list the matter fortuitously because counsel who now appears for the mother was involved in another matter in this court which counsel advised the court had resolved so that this matter could, as it were, fill its spot.
But for that fact, it was highly likely that this matter could not be determined finally, in this court, until approximately March of 2010. At the time that counsel for the mother mentioned the matter, I said that I considered it intolerable that the parties, and, most particularly, the children, should have to wait that length of time to have the matter heard and I was, of course, anxious to have the matter heard and determined as soon as possible.
At the earlier mentions, I made it plain that I was anxious to have the matter proceed and I asked counsel specifically whether the court could, as it were, trust the legal practitioners involved in the matter, to have the matter fully ready for trial on its allotted days, being today and tomorrow. I was assured that I could repose that trust.
Counsel for the mother indicated, during discussions about the case management of the matter, that it might be helpful if a consolidated affidavit was filed on behalf of the mother, given that earlier affidavit material had been filed in the Federal Magistrates Court. That seemed to me to be an intelligent course of action and, although I made no formal direction in that respect, it was understood that the mother would do so.
It transpires that this affidavit was filed some three working days prior to the commencement of the hearing. Mr Linklater-Steele, counsel for the father, objects to the receipt of that affidavit and asserts that his client is prejudiced in a specific respect.
He refers the court specifically to paragraphs 113 through 137 of the affidavit, in which detailed depositions are contained relating to what might be called the broad financial circumstances of the husband in the context of an assertion by the mother that the father has failed to provide proper or adequate child support. The issue, in that respect, is joined in child support proceedings between these parties.
I made it plain when listing this matter for hearing that I would deal only with the parenting issues. Of course, the distinction is easier to express than apply. The court is required, for example, to take into account, pursuant to section 60CC of the Act, the responsibilities of parenthood exhibited by each of the parties. An alleged failure to pay adequate child support might be considered relevant to that issue.
Whilst the adequacy of, or failure to pay, some or all of child support obligations (and, indeed, to provide for children generally from financial resources available to a party), is a significant matter directly relevant to the responsibilities of parenthood, the assertions in that affidavit go significantly further and allege what might be considered to be fraudulent activity on the part of the father.
I specifically enquired of counsel for the mother whether specific findings in that respect were sought and whether a specific finding was sought that the father’s true financial position was significantly different to that which he has deposed to, or otherwise indicated to, the mother and to other relevant organisations such as the Taxation office and the Legal Aid office. Mr Baston informed me that specific findings would be so sought in the context of these parenting proceedings.
Ultimately, Mr Baston withdrew the affidavit that I have just referred to. He relied, in lieu, on two affidavits; one filed 29 May 2008, the other filed on 7 October 2008. Mr Linklater-Steele submitted that, notwithstanding that development, his client remains prejudiced.
The foundation for that submission is that the affidavit of 7 October is a detailed affidavit drawn specifically in respect of the child support proceedings and involves a number of allegations directly related to the issues that I have previously described earlier which, because of my indication at the mention that only parenting issues would be heard, was not responded to.
Mr Linklater-Steele argues that, if his client is to meet those assertions, it will be necessary for the father to depose to a number of very specific matters including reference to financial documents and the like. Mr Linklater-Steele therefore continues to press for an adjournment.
Section 69ZN of the Act and indeed division 12A of the Act provides quite specific directions for the manner in which parenting proceedings are to be heard and determined by this court. Specifically, section 69ZN provides a number of mandatory principles which the court must apply when performing duties and exercising powers in relation to child related proceedings. Sub-sections 69ZN(2) through (7) provide five principles which the court must apply in that respect.
It is significant, in my view, to note that section 69ZN(3) provides that the first principle is that the court is to consider the needs of the child concerned and the impact the conduct of the proceedings may have on the child in determining the conduct of the proceedings. I take that principle into account in determining the application for adjournment.
These children have been the subject of litigation about where they should live and, in particular, in which country they should live, since May 2008. I have not the slightest doubt that it is in their best interests that that decision be made as soon as can possibly occur. That, it seems to me, is a directly relevant matter in respect of the application for adjournment.
Secondly, the court is mandated to actively, and I stress the word actively, direct, control and manage the conduct of the proceedings. Next, relevantly, the fifth principle is that the proceedings are to be conducted without undue delay and with as little formality and legal technicality and form as possible. It seems to me that the fifth principle, although a mandatory principle, ought not be read in a way which would permit the court to otherwise interfere with significant issues of natural justice for each of the parties before it.
The principles just enunciated are reinforced, as it were, by general duties imposed upon the court by section 69ZQ of the Act. Again, those duties are mandatory. Among them, relevant to the application before me, is that the court must decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily. Additionally, the court is required to “deal with as many aspects of the matter as it can on a single occasion.”
I bear those mandatory duties in mind in dealing with this application.
I propose to refuse the application for adjournment.
However, in doing so, I propose to, as the Act requires me to do, actively control the management of these proceedings and direct them so that the focus remains on issues directly relevant to the best interests of the children.
Secondly, I propose to ensure that these proceedings are brought to the speediest end that they can be, because I consider that to unequivocally be in the best interests of these two children. In my view, the manner in which that should be done, consistent with the principles and duties to which I have just referred, is by not permitting the mother to rely upon the affidavit filed by her on 7 October 2009 and to rely only upon the affidavit filed by her on 29 May 2008.
I propose to give leave to each of the parties to adduce oral evidence in respect of material that updates only the material otherwise contained in that affidavit, which is now some 15 months old. In making that ruling, I have in mind, particularly, that the financial circumstances of each of the parties, and specifically the father, may be directly relevant to any “international relocation case” including this. The practical difficulties and expense of contact have the potential to be particularly important.
Because that consideration is significant in cases of this type and, indeed, in this specific case, the financial circumstances of the husband are, of course, relevant to the determination I must make about the best interests of the children. However, it is significant, in my view, to note that in sworn evidence, in her affidavit filed 29 May 2008, the mother says:
While I would welcome a contribution from [the father] in order to defray some of the costs of contact, my proposal is (provided that [the father] pays child support on a regular and consistent basis) that I will meet the travel costs of the children associated with contact.
And in the following paragraph, the wife deposes:
It is now relatively economical to travel overseas if the airfares are purchased in advance and there are direct flights between [the United States] and Brisbane. While it is a significant distance, it is not unsurmountable.
Further, Mr Baston, counsel for the mother says, from the bar table, that, consistent with the tenor of all of the evidence filed on behalf of his client, that the mother’s parents are persons of significant means as is indicated by their financial support of the family in the past and the proposed living circumstances which are proposed by the mother in the event that she lives with the children in the United States.
The interests of justice and the mandatory principles an duties mandated by the Act are, in my view, best met by the orders earlier referred to and I order accordingly.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate:

Date: 8 December 2009

[2009] FamCA 1204

24 November 2009

Key Legal Topics

Areas of Law

Civil Procedure

Family Law

Legal Concepts

Procedural Fairness