Lavazzi and Braemer

FAMILY COURT OF AUSTRALIA

LOVAZZI & BRAEMER

[2009] FamCA 289

FAMILY LAW – CHILDREN – Parental responsibility – Orders made by consent that the children live with the mother – Whether restriction should be placed on the mother’s ability to relocate with the children unilaterally – The test in Sampson & Hartnett

Family Law Act 1975 (Cth)

Sampson & Hartnett(No 10) (2007) FLC 93-350

APPLICANT:

Mr Lovazzi

RESPONDENT:

Ms Braemer

INDEPENDENT CHILDREN’S LAWYER:

Ms Gray

FILE NUMBER:

CSC

554

2008

DATE DELIVERED:

26 March 2009

PLACE DELIVERED:

Cairns

PLACE HEARD:

Cairns

JUDGMENT OF:

Watts J

HEARING DATE:

26 March 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Williams Graham Carman Solicitors

SOLICITOR FOR THE RESPONDENT:

Murray Lyons

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

That the mother has sole parental responsibility for making decisions about major long-term issues for the children of the marriage namely K born … June 1995 and M born … February 1998.
That for the purposes of these orders a major long-term issue shall include, but is not limited to, issues about:-
2.1The children’s education (both current and future);
2.2The children’s religious and cultural upbringing;
2.3The children’s health;
2.4Subject to order 8, the children’s names/name;
2.5Subject to Order 7, changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
That the children live with the mother.
That the children spend such time with the father as they shall from time to time determine.
The mother notify the father in writing, by letter to the father at his residential address which at the date of these orders is …, on or before the first day of January, April, July and October in each year of all decisions that she makes about the long term care of the children in accordance with orders 1 and 2 above.
Despite the fact that the mother has sole parental responsibility both parents are authorized and entitled to:-
6.1 Obtain information and documents from each child’s school including newsletters, reports, educational matter and any other documents or information relevant to the child’s welfare;
6.2 Attend upon and obtain information and reports from any treating doctor, specialist or health professional relevant to the children’s welfare.

7.1The mother is restrained from relocating the children from the Cairns area until the expiration of a period of one month after she has given the father written notice of her intention to relocate the children from the Cairns area.
7.2The father upon receipt of such notice shall be at liberty to seek interim orders restraining the mother from moving until the court determines on an interim basis whether or not she can move.
7.3The notice referred to in order 7.1 shall be given by the mother to the father by email to the father’s email address and also by registered mail to his residential address.

The mother shall be at all times ensure that the children do not use any surname except “Lovazzi-Braemer”.
The Independent Children's Lawyer shall cause the letter which is attached to these orders and marked “A” to be read to each of the children separately and a copy to be provided to each of the children within 7 days from the date of these orders.
The order appointing the Independent Children's Lawyer be discharged.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC 554 of 2008

MR LOVAZZI

Applicant

And

MS BRAEMER

Respondent

EX TEMPORE REASONS FOR JUDGMENT

These proceedings are about K born in June 1995 who is currently aged 13 and M born in February 1998 who is currently 11 years of age. The matter was set today before me for final hearing. The parties resolved all issues about parenting matters except one. Today I made orders by consent in the terms of Exhibit JLS1 which is attached to an affidavit by the father sworn on 26 March 2009.
The remaining application brought by the father is for an order in the following terms:
“The mother is restrained from relocating the children from the Cairns area without the consent of the father or pursuant to an order of this Court.”
Mr Lago properly conceded that although the order is couched in terms of restraining the children from relocating from the Cairns area, the application in reality is for an order of an injunctive nature preventing the mother from relocating from the Cairns area. That is so because the orders that have been made today provide that the mother have sole parental responsibility for the girls and that the girls live with their mother. She consequently cannot exercise parental responsibility for the girls if they are restrained from relocating from Cairns unless she herself stays in Cairns.
The Independent Children’s Lawyer proposed an order restraining the mother from relocating from the Cairns area until after 28 days had expired from the service of a notice upon the father of the mother's intention to so move.
The mother opposed both the application made by the father and the alternate order proposed by the Independent Children’s Lawyer.
The relevant law in relation to this application can be found in the Full Court's decision of Sampson & Hartnett(No 10) (2007) FLC 93-350. In that case the majority of Bryant CJ and Warnick J at paragraph 58 concluded that there is power under s 114(3) of the Family Law Act 1975 (Cth) (the Act) when people have been married to enjoin a parent from relocating provided that the injunction is no more than is necessary to secure the best interests of the child. They go on to say that:
"The proper exercise of such a power is likely to be rare."
So the question in this case is: is this one of those rare cases where it is in the children's best interests to make such an order?
I briefly set out a chronology.
The father was born in January 1971 and the mother was born in September 1971.
The parties met in 1992 and married in October 1994.
K was born in June 1995 and M was born in February 1998.
The parties separated in 2001 and divorced on 19 December 2002.
The wife remarried Mr Braemer in 2005.
These proceedings have been on foot since about April 2006.
The mother gave birth to L, who is a child of her current marriage, in July 2006.
Interim orders were made by Jarrett FM on 7 May 2008 following the preparation of two family reports, one in December 2006 and one in May 2008. Dr W, who is a psychiatrist, prepared a report which was issued on 15 January 2009.
The documents I have been asked to read in this case are the respondent's affidavit sworn on 7 May 2008, the family report prepared by Ms I on 1 May 2008 and a report from Dr W which was prepared on 15 January 2009.
Turning then to the father's submissions, the father submits that the girls have been alienated from him and he very reluctantly has stepped back and has consented to the orders that have been made today. The letter which is marked “A” and attached to the orders made today makes it clear that that has been very hard for him. Mr Lago on behalf of the father submits that as the girls mature, there is a real possibility that they may wish to reconnect with their father. They may themselves challenge the reasons that they themselves have shut themselves out of their father's life and that will place them, if that happens, in conflict with their mother.
The thrust of the father's submissions is that some type of fetter on the children moving away from Cairns will increase the opportunities that the girls have to reconnect with their father. In turn, the father will have a greater opportunity, whilst waiting to see whether or not the children's attitudes change and develop over time, to keep in contact with the children's teachers, a better opportunity to keep himself informed about their educational progress, and a better opportunity to receive information about medical problems that the children might be experiencing in the future.
In support of his submissions, Mr Lago referred to various parts of Dr W’s report. Firstly, at page 27 he referred to the fact that in the final part of that paragraph Dr W concluded that the father should be allowed to maintain whatever contact he can through letters and information about education and health in the hope that when the children are able to have a more balanced sense of their parents, they may be able to resume their relationship with him. In support of his contention that the children have been effectively alienated from their father, he refers to the second‑last paragraph on page 27 which says:
"The children in this situation have been effectively alienated from their father. While some of this will have been caused by his own actions and choices, the majority appears to have occurred within their residential environment."
He inferred the support of that conclusion from observations made by Dr W on page 17 of the report where in relation to M he said:
"She came out with statements that appeared rehearsed and learnt which were repeated almost word perfect. She had little firsthand evidence to support her allegations about her father but appeared to believe her allegations and became very anxious when discussing the possibility of meeting her father."
Towards the end of the first full paragraph on page 27, Dr W says:
"During these interviews the girls' emotional reactions to seeing their father were far more extreme than would have been warranted by their allegations, some of which were not based on fact and others that were based on adult issues. While [the mother] is able to meet the girls' physical needs through their adolescence, her inability to ensure contact with their father would suggest that she is not able to place their emotional needs above her own. This desire to control the girls may prove problematic throughout their adolescence."
Mr Treston on behalf of the mother has provided written submissions. The first point he makes in the submissions is that the mother has no immediate plans to relocate and is well settled in Cairns. She has been here since 1992. The point appears to be that there is no basis to suspect that she will move from Cairns and therefore no basis to make the order. He describes the order that is sought as a final order and I will say something more about that in a minute. At paragraph 3 on page 3 of his submissions Mr Treston says:
23.1."The respondent considers the restraint to be unreasonable. The respondent deposes in her affidavit that in the current economic climate it is foreseeable that the respondent's current partner may need to obtain job opportunities elsewhere and this would necessitate the respondent and the children relocating. If this would occur and the applicant did not consent, further litigation would be necessary."
At paragraph 4 on page 3 of his written submissions Mr Treston makes four points, one of which he said he did not understand, nor did I, so I will just refer to the first three:-
24.1.The restraint will be a restraint upon the mother's right to freedom of movement;
24.2.If the respondent were to move, she could continue to comply with the existing orders to report on long-term decisions she made for the children;
24.3.The applicant is having no contact with the children at present.
At paragraph 5 of his written submissions on page 4 he makes the point that:
"[M] is currently 11 years and absent anything else happening, it would mean that the mother would be restricted to living in Cairns for the next seven years, and in the prevailing uncertain times, that is an onerous restraint, particularly when the children are not spending time with the father."
In paragraph 6 of his written submissions he says:
"The applicant has vested by consent in the respondent mother sole responsibility for the children. By this, the applicant father is agreeable to the respondent mother making decisions about the children, including where they are to live. The restraint requested by the applicant father is inconsistent with that."
Dealing with that last point, it is technically true that Order 1 and Order 2.5 made by me earlier today reposes in the mother sole parental responsibility for making decisions about major long-term issues relating to the children which includes changes to the children's living arrangements that would make it significantly more difficult for the children to spend time with a parent. So it is technically true that an order has been made today that would cut across any injunctive order that was sought. It is, however, quite clear that the orders that I made by consent earlier today were subject to me dealing with this application and so that if either the father or the Independent Children’s Lawyer was successful in the application I would need in addition to make sure that Order 2.5 was not inconsistent with any order that I make that restrains the mother in any way.
To say something about the notion that what I am being asked to do is to make a final order, in my view what I am being asked to do is not something that would involve me in making a final order. The father seeks an order for an injunction which can be removed with his consent or by further Court order and in that sense it is not a final order. There is no threshold issue that will have to be dealt with on a revisiting of any order that I make. There is no Rice v Asplund issue. As the passage that I quoted from Sampson & Hartnett (No 10) makes clear, any injunctive order which exercises power under s 114(3) of the Act can only be exercised in circumstances that are no more than are necessary to secure the best interests of a child, or in this case the children. The terms of s 114(3) are, inter alia:
"A Court exercising jurisdiction under this Act in proceedings ….."
And the proceedings relevantly in this case are parenting proceedings:
"….. may grant an injunction, by interlocutory order or otherwise …. in any case in which it appears to the Court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the Court considers appropriate."
I should have made it clear earlier that when talking about the finality of the order, of course the order I am making is a final order in the sense that it disposes of the current application. It is not a final order in the sense that it would require some type of change of circumstances or threshold test to be met if a further order was sought on the father's proposal by the mother seeking the Court's permission to move away or on the independent children's lawyer's proposal, an application by the father seeking a restraint from the mother moving away.
Moving then to the consideration of the best interests of the children, s 60CC(1) provides that:
"In determining what is in the child's best interests, the Court must consider the matters set out in subsections (2) and (3)."
Section 60CC(2) deals with the primary considerations. Sub paragraph (a) relates to the benefit to the children of having a meaningful relationship with both of their parents. At the moment, based on the orders that I have made today, the children have no meaningful relationship with their father. Order 4 as made allows the children to spend such time with their father as they shall from time to time determine.
In relation to s 60CC(3)(a), it is clear that at the current time both the girls have expressed views against spending time with their father.
In relation to subsection (b), the two reports to which I have referred describe the nature of the relationship of the children with each of their parents.
In relation to subsection (c), it is clear that Dr W’s opinion is that there is a lack of willingness and ability on behalf of the mother to facilitate and encourage a close and continuing relationship between the children and their father.
In relation to subsection (e), the practical difficulties and expenses of the children spending time with and communicating with their father, I accept the argument by the father that if the children move away from Cairns, additional difficulties will be created for the future implementation of any time that might be envisaged by Order 4 as I have made it today.
The mother would rely upon s 60CC(3)(l); that is, she would suggest that no order would mean that there would be less likelihood that the matter would have to come back to Court in the future should she wish to move away.
I conclude that this is a rare case. Mr W has concluded that the major cause of the girls' alienation from their father appears to have occurred within their residential environment. I conclude that it is in the children's best interests to place some barrier in respect of the mother relocating with the children unilaterally.
Having reached those conclusions, I need to choose between the proposal of the father and that of the Independent Children’s Lawyer. As the Full Court said in Sampson & Hartnett (No 10), the order that I make is to be no more than is necessary to secure the best interests of the children. I find that the Independent Children’s Lawyer’s proposal is sufficient in the children's best interests and I accordingly intend to make an order in the terms proposed by the Independent Children’s Lawyer.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the ex temper reasons for judgment of the Honourable Justice Watts

Associate:

Date:

[2009] FamCA 289

26 March 2009

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness